Africa

From the constitutional review point of view, Africa is interesting because of the large variety of systems.

With reference to the influences of foreign legal systems, African constitutional review systems can be classified as follows:

a) FRANCOPHONE AFRICA

In this area constitutional review was most often introduced under the influence of the French model of 1958 (Conseil Constitutionnel - Constitutional Council). In accordance with the French legal tradition, constitutional review is under the jurisdiction of special Constitutional chambers (of the Supreme Court) - Chambres Constitutionnelles. On the other hand, a certain number of systems were developed under the influence of the so-called European model (the Austrian Constitutional Court of 1919 and the German Constitutional Court of 1951).

A few countries established their first constitutional review systems immediately after achieving independence in 1959⁶⁴. Many countries assumed (or introduced anew) the same or similar systems into their recent Constitutions⁶⁵. Cameroon formerly entrusted the implementation of the protection of constitutionality to the Constitutional Council. These countries were followed by Morocco, which, with the Constitution of 7 March, 1962, introduced the Constitutional Chamber of the Supreme Court, while the then Tunisian and Algerian Constitutions did not feature any constitutional review.

Numerous Francophone countries developed their constitutional review in a concentrated form, and assigned this function to a single body (although in certain cases at the beginning of the independent development of the relevant legal system this review did not exist).

In certain Francophone countries constitutional review was practiced by the ordinary courts as one of their specialized jurisdictions, or by the Supreme Court as an integral institution, or through a special chamber, or through a Constitutional Department of the Supreme Court, or through a Constitutional Council after the European model. In individual cases this function was performed jointly by the united supreme instance of ordinary justice - by the Supreme Court and the Court of Appeals. Some of these countries initially introduced autonomous and special institutions for constitutional review; subsequently this was replaced by a corresponding new power exercised of the highest ordinary court in the State.

Another group of Francophone African countries covers jurisdictions where constitutional review has always been institutionally separated from ordinary justice and fails accordingly under the power of the Constitutional Court as an independent institution (e.g. Madagascar).

b) ANGLOPHONE AFRICA

It is characteristic of Anglophone African countries that they have not adopted the British system with no written Constitution and without constitutional review, but rather followed the American system of judicial review. As a matter of fact, upon independence, many Anglophone countries adopted written Constitutions⁶⁶.

Some of these countries, e.g. Zambia⁶⁷ and Malawi, have adopted the American system of judicial review (the so-called system of diffuse review), which means that review fails under the jurisdiction of each judge and each court - and it is only in the hierarchy of adjudicating that a uniform interpretation of the Constitution is secured by the authority of the national Supreme Court.

On the other hand, there are other countries which, in spite of the adopted tradition of the Common Law system, have authorized a single government body to carry out constitutional review (a concentrated system of constitutional review in agreement with the Common Law system). This seems to show that in principle the concentrated system of constitutional review (contrary to the American diffuse system) is not incompatible with the Common Law system. This is the state of affairs in Uganda, in which the 1966 Constitution gave the Supreme Court exclusive jurisdiction over constitutional matters⁶⁸.

Most of the above mentioned countries have also followed the American model and have adopted their Bills of Rights. In particular the former African countries of the British Commonwealth - Tanzania and Kenya have adopted the American system of constitutional review, with its special emphasis on the protection of constitutional rights and freedoms. They reduced the possibility of the abuse of human rights through appeals to the Supreme Court⁶⁹. According to the data available, it is not possible to establish how this legal protection was enforced in practice, although the mere existence of this possibility represents an important fact, depending on the respect for the independence of the judiciary in the particular State, and the particular legal system to the extent of which it preserves the "Rule of Law."

It is less known that in these countries human rights' protection systems, resulting from the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November, 1950, had been established prior to their independence. The provisions of the above Convention were in force in numerous African countries due to the fact that Great Britain decided to implement the Extension Clause of Article 63 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and since 23 October, 1953 have enforced the validity of the Convention including its first Protocol of 20 March 1953 also in the African territories under British sovereignty, among others, in particular in Tanganyika and Zanzibar. Upon acquiring independence some of these African countries included the list of rights from the European Convention for the Protection of Human Rights andFundamental Freedoms directly into their Constitutions, such as Nigeria with its Constitutional Act on the Proclamation of Independence (1 October, 1960).

A special phenomenon is evident in the constitutional review system in Mauritius. It is the so-called New (British) Commonwealth model (Mauritius) and it cannot be classified either under the American or under the European model. This model is characterized by concentrated constitutional review under the jurisdiction of the Supreme Court consisting of ordinary judges regularly appointed. The system of Mauritius mainly involves preventative review and the consultative function of the Supreme Court, although repressive review is also possible. Another special feature is that decisions have an erga omnes effect.

c) LUSOPHONE AFRICA

Upon acquiring independence, Mozambique and Angola did not introduce constitutional review after the Portuguese model (also due to the then socialist political system supposedly not compatible with the institution of constitutional review), although the then Constitution of Mozambique specified the Supreme Court as the guarantor of respect for the Constitution, statutes and other legislative acts. The new Constitution of Mozambique of 2 November, 1990, established an independent body for constitutional review, the Constitutional Council (Articles 180 through 184), with broad powers, whereby the circle of petitioners for constitutional review (standing) was limited to the highest government bodies only. Further, the new Constitution of Angola (draft of April 1990) anticipates the foundation of the Constitutional Court with jurisdiction to discuss and to assess the constitutionality and legality of statutes and other legal measures if they do not accord with constitutional principles (Para. 2 of Article 65).

The Portuguese Constitution of 2 April, 1976, only partly served as a model for the Constitutions of Cape Verde, Guinea Bissao and Sao Tome and Principe⁷⁰. All three countries introduced a particular system similar to the constitutional review⁷¹. In principle the (ordinary) courts are empowered to not apply unconstitutional statutes. In addition, an ordinary court, the attorney general or some other government body is entitled to submit to the Parliament a request for the constitutional review of a particular law allegedly in violation of the Constitution; accordingly, constitutional review is performed by a political (legislative) body. The decisions of the Parliament have an erga omnes effect and are published in the official gazette. However, subsequently, in some countries of the respective group the Supreme Court of Justice became empowered to exercise constitutional review (e.g. the Constitution of the Republic of Cape Verde of 25 September, 1992).

d) HISPANOPHONE AFRICA

The Constitution of Equatorial Guinea, in force up to 1991, specified that the National Council as the supreme collective government body had jurisdiction to deal with constitutional matters, including: deciding on the constitutionality of statutes and measures taken for their implementation; the authentic interpretation of respective laws; the review of presidential elections; and the review of the (in)capacity of the President of the Republic to perform their office.

The Fundamental Law of Equatorial Guinea of 16 November, 1991 introduced the Constitutional Court, which is created within the Supreme Court of Justice (Article 94).

e) SOME COUNTRIES WITH THE LONGEST STATE TRADITION

Although Liberia ranks among the oldest independent African countries, it has not introduced any constitutional review despite its State and constitutional tradition. The Liberian Constitution of 26 July, 1847, (with Amendments of 1955) does not anticipate any constitutional review of statutes. Neither did the Ethiopian Constitution of 4 November, 1955, feature any constitutional review, whereas the new Constitution of 21 August, 1995 introduced the constitutional review, following a model of specialized State body, although in specific circumstances concerning the supremacy of the Parliament, the decisions by the Ethiopian Council of Constitutional Inquiry must be approved by the Parliament.
 
 

THE COMPOSITION OF BODIES EMPOWERED TO CARRY OUT CONSTITUTIONAL REVIEW

Particularly in systems where such bodies were established as independent and specialized, their composition has been highly influenced by the executive branch - primarily by the Head of State. The same branch has influenced the composition of such courts even in some countries where constitutional review is carried out by the Supreme Court. The constitutional chambers or departments of supreme courts are composed mainly of professional judges, but also in such cases the executive branch always assists in their appointment.

All the systems feature the principle of the independence of judges who exercise constitutional review. The incompatibility of the office of Constitutional Court Judge with particular activities is considered as well. At the same time, Constitutional Court Judges are entitled to some privileges, e.g. they are irremovable. During their term of office, their immunity is equal to representative immunity.
 

THE POWERS OF CONSTITUTIONAL REVIEW BODIES

1. General picture

These systems mostly adopted the constitutional review of statutes. Some systems also adopted the preventative review of statutes and/or the so-called consultative function of bodies exercising constitutional review concerning the drafting of statutes, executive regulations or presidential acts. Several systems introduced the constitutional review of presidential and representative elections.

The African systems primarily adopted two systems concerning the effects of Constitutional Court decisions: the Francophone systems feature erga omnes effects, while the Anglophone systems do not feature such effect. The exception is the American rule of stare decisis, which is not implemented often by the African Anglophone systems.

In only a few countries is the constitutional complaint guaranteed: e.g. Benin, Congo. In addition, constitutional courts are rarely empowered to exercise ex officio review (e.g. in Mali, under the Law of 1965).

Concerning the systems of concentrated constitutional review the powers are similar: review of the constitutionality of statutes, review of the constitutionality of international treaties (mostly preventative), review of elections etc. Often the role of the Head of State as a petitioner before the Constitutional Court is emphasised, especially concerning the preventative constitutional review of statutes and international treaties. Sometimes the Head of State is a favored petitioner together with the President of the Parliament. In some countries the government also has the status of legitimate petitioner. On the other hand, quite rarely a group of representatives has the status of legitimate petitioner.

2. Particular Systems of Constitutional Review

ALGERIA:

Algeria introduced the constitutional review by the Constitution of 10 September, 1963. Under Article 64 of the Constitution, the Constitutional Council (conseil constitutionnel) was empowered to review the constitutionality of statutes passed by the National Assembly as well as the constitutionality of regulations having the force of statute issued by the Head of State (decrees having the force of statute).

By the constitutional reform of 28 February, 1989, the Constitutional Council as an independent body was established. Its activities are regulated by the President's Decree of 7 August, 1989 concerning its internal organisation (Decret presidential et reglement interieur) as well as the presidential decree of 4 April, 1989 concerning the appointment and the composition of the Constitutional Council (Decret presidential relatif a la publication de la composition des membres du Conseil constitutionnel). The Council is composed of 7 members. 3 members are appointed by the President of the Republic, 2 are appointed by the Parliament, 2 are appointed by the Supreme Court from among its members (Article 145 of the Constitution). The President of the Council is appointed by the Head of State. The members of the Council (including the President) are appointed for six years. The Council is reappointed in three-year intervals. Under the Decree on the Organisation, new members of the Council have to be appointed within 15 days from when the term of office of previous members has expired. In accordance with the President's directions, the administration is managed by a Secretary General with two assistant-directors for research matters. The budget of the Council is a part of the general State budget.

The office of a member of the Constitutional Council is incompatible with all other offices; the only exceptions are artistic and scientific activities (Article 154). Members of the Constitutional Council are not allowed to hold any other public office; in case of violation, the Council decides on the termination of office of the offender. The decisions of the Constitutional Council are passed by a majority of its members. In case of a deadlock, the president's vote is decisive. A quorum consists of at least 5 members of the Council.

The Council has the following powers:

- the abstract review of acts issued by the President of the Republic or by the Parliament, which entails constitutional review a posteriors with ex nunc effect. The decisions are binding;
- the preventative review (a priori) of acts of the President of the Republic and the Parliament;
- impeachment (Article 84 of the Constitution);
- the review of parliamentary and presidential elections;
- the review of the capacity of the President to perform the office of the President;
- the review of the results of referenda:
- the preventative review (a priori) of international treaties before their ratification;
- on the proposal of the President of the Republic, a consultative function concerning urgent measures, a State of Emergency (Articles 85, 86 and 87 of the Constitution), amnesty (Article 90 of the Constitution), as well as in cases of constitutional amendments.

The case-law of the Algerian Constitutional Council is characterised by the great influence of the French Constitutional Council. The decisions of the Algerian Council are published in the Official Gazette. They are signed by the President and Vice-President of the Council. The reporting judge remains anonymous. The decisions are passed by anonymous voting.

The Constitution of 28 November, 1996, reintroduced the Constitutional Council. The Council is established to guard the respect for the Constitution (Article 163). The Council monitors, among other matters, the regularity of referendum operations, the election of the President of the Republic and legislative actions. It announces the result of its operations. The Council consists of nine members (Article 164). Three are appointed by the President of the Republic, two are elected by the National People's Assembly, two are elected by the Council of the Nation, one is elected by the Supreme Court, and one is elected by the Council of State. As soon as they are elected or designated, the members of the Council cease any other mandate, function charge or mission. The President of the Republic designates the President of the Constitutional Council for a single six-year term. The other members of the Constitutional Council serve a single term of six years and one half are appointed every three years. In addition, the Council rules on the constitutionality of treaties, laws and negotiations, either by an opinion, if these are not rendered executory, or by a decision, otherwise (Article 165). The Council when called upon by the President of the Republic issues an obligatory opinion on the constitutionality of organic laws after their adoption by the Parliament (Article 165). It also rules on the conformity with the Constitution of the internal regulation of each of the two chambers of Parliament. When the Council rules that a treaty, accord or convention is unconstitutional, its ratification cannot take place (Article 168). When it rules that a legislative or regulatory provision is unconstitutional, it loses all effect from the day of the decision of the Council (Article 169).

ANGOLA

The new draft Constitution of Angola of April 1990 adopted the principles of the supremacy of the Constitution and the independence of the judiciary.

Under Para. 2 of Article 65 the establishment of the Constitutional Court is foreseen, which is empowered to decide on the unconstitutionality and illegality of provisions of statutes and other regulations that violate the principles determined by the Constitution of the State.

BENIN (the former Republic of Dahomey)

The Constitutional Chamber of the State (Supreme) Court is empowered to carry out constitutional review, and was introduced by Article 47 of the Constitution of 14 February, 1959. Such regulation was reintroduced by Article 58 of the Constitution of 26 November, 1960.

The Constitution of 8 April, 1968 in the latest Subpara. of Article 62 as well as in Subpara. 1 of Article 85, introduced the constitutional review of basic statutes. Under Article 43 of the same Constitution, the Supreme Court of the State was empowered to exercise such powers.

Under Article 44 of the Constitution, the composition, the organization and activities of the Court are to be regulated by special statute.

The Constitution of the Republic of Dahomey of 11 April, 1978, (Article 3) introduced the popular complaint before the Supreme Court containing a request for the constitutional review of all statutes.

The new Constitution of the Republic of Benin, adopted in December 1990, introduced the Constitutional Court as an independent body of constitutional review, which was then established on 7 June, 1993. The Constitutional Court assumed the powers of the now superseded Supreme Court. It is composed of seven members. Four are appointed by a special Council of the Parliament, three are appointed by the Head of State. It is empowered to review the constitutionality of statutes as well as to protect constitutional rights and freedoms. There is no remedy against the decisions of the Constitutional Court, which are binding on all State bodies.

BOTSWANA

The Constitution of 30 September, 1966, amended of 1987 specifies that where any question as to the interpretation of the Constitution arises in any proceedings in a subordinate court and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the High Court (Article 105). The High Court issues its decision on the question and refers it to the subordinate court, which disposes of the case in accordance with that decision.

BURKINA FASO

The Constitutional Chamber and/or the Constitutional Council of the Supreme Court of the Republic of Burkina Faso (until 1984 the Republic of Upper Volta) was empowered to carry out constitutional review under Article 66 of the Constitution of 15 March, 1959, as well as under Article 57 of the Constitution of 30 November, 1960.
 
 

The Constitution of 14 June, 1970 newly empowered the Constitutional Council of the Supreme Court (Subpara. 3 of Article 3 and Article 88).

It has the following powers:

The constitutional amendment of 1977 granted citizens the right to individual complaint, involving a request for the review of the constitutionality of statutes.

Under the new Constitution of 11 June, 1991 amended on 27 January, 1997, the constitutional review of statutes is exercised also by the Constitutional Chamber of the Supreme Court, which is presided over by the President of the Supreme Court (Article 152). The Constitutional Chamber is composed of (Article 153): the President of the Supreme Court; three judges appointed by the Head of State, following the proposal of the Minister of Justice; three judges appointed directly by the Head of State; as well as three judges appointed by the President of the Parliament. The term of office of members of the Constitutional Chamber is 9 years. The Court is reappointed every three years in proceedings determined by statute. The office of Constitutional Court Judge is incompatible with the office of representative of the Parliament. Other cases of incompatibility are determined by a statute.

The Constitutional Chamber has the following powers: the review of Presidential elections, the review of parliamentary elections, the review of the results of referenda (Article 154); the preventative constitutional review of basic and other statutes before their promulgation (Article 155), the constitutional review of international treaties before their ratification (Articles 150 and 155); the review of the constitutionality of the activities of political parties (Article 156 in connection with Subpara. 5 of Article 13). The legitimate petitioners for (preventative) constitutional review are the President of the Republic, the Prime Minister, the presidents of both Chambers of the Parliament, and 1/5 of the representatives of the Parliament (Article 157). The decisions of the Constitutional Chamber are generally binding (Article 159). The organization and work of the Constitutional Chamber are determined by statute (Article 160 of the Constitution). The new Constitution does not contain an explicitly regulation concerning the popular complaint.

BURUNDI

The Constitution of the Kingdom of Burundi of 16 October, 1962 empowered the Constitutional Chamber of the Supreme Court to exercise constitutional review (Article 95). The next Constitutions of 11 July, 1974 and of 18 November, 1980, adopted the same institution, after the civil Constitution was suspended in 1981.

The new Constitution of the Republic of Burundi was adopted on 18 January, 1992. The jurisdiction of the Constitutional Court comprises actions of the State in constitutional matters. It judges the constitutionality of laws and interprets the Constitution (Article 149). The Court is composed of an odd number of at least five members appointed by the President of the Republic for a term of six years, with the possibility of reappointment (Article 150). Members of the Court must be jurists of high standing, having at least eight years of professional experience. They are chosen from among individuals recognized for their moral integrity, impartiality and independence. Half the members of the Constitutional Court are career magistrates.

The Constitutional Court is empowered to (Article 151):
- decide on the constitutionality of statutes and regulatory acts adopted in matters other than those related to the domain of the law at the request of the President of the Republic, the Prime Minister, the President of the National Assembly, one quarter of the Representatives, or any individual;
- interpret the Constitution at the request of the President of the Republic, the Prime Minister, the President of the National Assembly, or one quarter of the Representatives;
- decide on the propriety of presidential and legislative elections and referenda, and to proclaim their results;
- accept the oath of the President of the Republic marking his entry into office;
- verify the vacancy of the office of the President of the Republic.

Organic statutes before their promulgation and internal regulations of the National Assembly before their application, are necessarily subject to constitutional review (Para. 2 of Article 151).

The Constitutional Court is consulted concerning measures issued during the exercise of emergency powers (Para. 3 of Article 79). Any text of a legislative nature may be modified on entering into force by presidential decree or by legislative enactment upon the recommendation of the Constitutional Court (Articles 113 and 114). Unless unforeseeable circumstances intervene as verified by the Constitutional Court, the meetings of the National Assembly are not valid provided they are not held at the ordinary site of its sessions (Para. 1 of Article 122).

When the Constitutional Court, upon the request of the President of the Republic, the Prime Minister, the President of the National Assembly, or a quarter of the representatives, declares that an international obligation contravenes the Constitution, such accord may only be ratified after amendment of the Constitution (Article 176).

Every individual interested, as well as the Public Prosecutor, may request that the Constitutional Court rule on the constitutionality of statutes, either directly by means of an action or by exceptional proceedings for claiming unconstitutionality raised in a matter which concerns that person before an authority. Such authority suspends judgment until a decision is reached by the Constitutional Court, which must rule within thirty days (Para. 2 of Article 153).

An act declared unconstitutional may not be promulgated or applied (Article 154). The decisions of the Constitutional Court may not be appealed (Para. 2 of Article 154).

An organic statute determines the organisation and operation of the Constitutional Court, as well as the proceedings to be followed before it (Article 155).

The High Court of Justice composed of the Supreme Court and the Constitutional Court, jointly are empowered to hear cases involving the impeachment of the President of the Republic, the Prime Minister, or the President of the National Assembly (Article 157).

CAMEROON

The first Constitution of 1960 did not introduce any constitutional review. The later Constitution of the Federal Republic of Cameroon (after the union of its Francophone and Anglophone territories) of 1 September, 1961, established the Federal Court (Article 33), which was, as a protector of the constitutional order, empowered only to decide on jurisdictional disputes between State bodies, but not to decide cases concerning the constitutional review of statutes.

By the centralized Constitution of 20 May, 1972, the country reintroduced the Supreme Court (Articles 7, 10 and 27 of the Constitution). Its organization and work was regulated by the Constitutional Act of 9 May 1975. Despite further amendments of this Act (Act No. 79-02 of 1979 Act No. 83-10 of 21 July, 1983, and Act No. 83-25 of 29 November, 1983), these regulations did not reinforce the functions of the Supreme Court concerning constitutional review. This function was exercised by the Constitutional Chamber of the Supreme Court (Article 32 of the Constitution of 2 June,1972). The legitimate petitioners for the constitutional review of statutes were the President of the Republic or the President of the Parliament.

The new Law No. 96-06 of 18 January, 1996, to Amend the Constitution of 2 June, 1972 introduced the Constitutional Council. The Council has jurisdiction in matters pertaining to the Constitution. It rules on the constitutionality of statutes (Article 46).
 

The Constitutional Council issues final rulings (Article 47) on:
- the constitutionality of statutes, treaties and international treaties;
- the constitutionality of rules of procedure of the National Assembly and the Senate prior to their implementation;
- conflicts of powers between State institutions, between the State and the Regions, and between the Regions.

Matters may be referred to the Council by the President of the Republic, the President of the National Assembly, the President of the Senate, one-third of the members of the National Assembly or one-third of the Senators (Para. 2 of Article 47). The presidents of regional executive branches may refer matters to the Constitutional Council whenever the interests of their Regions are at stake.

Statutes, as well as treaties and international treaties may, prior to their enactment, be referred to the Constitutional Council by the President of the Republic, the President of the National Assembly, the President of the Senate, one third of the members of the National Assembly, one third of the Senators, or the presidents of regional executive branches (Para. 3 of Article 47). Enactment deadlines cease to apply once the relevant matter has been referred to the Constitutional Council. The Constitutional Council advises in matters failing under its jurisdiction.

The Constitutional Council ensures the regularity of presidential elections, parliamentary elections and referenda. It proclaims the results thereof (Article 48).

In any case, the Council gives a ruling within a period of fifteen days, once a matter has been referred to it (Article 49). However, at the request of the President of the Republic, such a time-limit may be reduced to eight days.

Rulings of the Constitutional Council are not a subject to appeal. They are binding on all public, administrative, military and judicial authorities, as well as on all individuals and corporate bodies (Article 50). A provision that has been declared unconstitutional may not be enacted or implemented.
 
 
 
 

The Council is composed of eleven members appointed to a nonrenewable nine-year term of office (Article 51). These members are chosen from among individuals of established professional reputation. They must be of high moral integrity and proven competence. Members of the Council are appointed by the President of the Republic. They are appointed as follows:

- three, including the President of the Council, by the President of the Republic;

- three by the President of the National Assembly after consultation with the national Bureau;

- three by the President of the Senate after consultation with the national Bureau;

- two by the High Judicial Council.

Besides the eleven members, former presidents of the Republic are ex officio members of the Constitutional Council for life.

In case of a deadlock, the President of the Constitutional Council has the deciding vote.

In the event of the death or resignation or any other cause of incapacity or inability duly established by the competent bodies provided by law, a replacement shall be designated by the competent authority or body concerned and appointed to complete the term of office (Para. 3 of Article 51). Members of the Council take the oath of office as laid down by statute, before a Parliamentary session (Para. 4 of Article 51). The office of member of the Council is incompatible with that of member of the Government, member of Parliament, or of the Supreme Court. Other incompatibilities and matters relating to the status of members, namely obligations, immunities and privileges, are laid down by statute (Para. 5 of Article 51).

A statute regulates the organisation and functioning of the Constitutional Council, the conditions for referring matters to it, as well as the proceedings applicable before it (Article 52).
 
 

CAPE VERDE

By the Constitution of 25 September,1992, the Supreme Court of Justice became empowered to exercise constitutional review. Its powers are as follows (Articles 300 to 305):

- the preventive review of international treaties when requested by the President of the Republic;

- the abstract review of the constitutionality of any laws or resolutions of general or specific contents;

- the abstract review of the illegality of resolutions;

- the concrete review of constitutionality where unconstitutionality has been claimed in a trial;

- the deciding on individual appeals filed by any individual or the Public Prosecutor's Office after the exhaustion of the process established by law by which the original decision was issued.

In cases of the preventative review of international treaties, rulings of the Supreme Court of Justice have the form of an opinion (Para. 1 of Article 306). In other cases, decisions of the Supreme Court have the form of a ruling (Para. 2 of Article 306).

Decisions of the Supreme Court which deal with constitutionality or illegality are published in their entirety in the official journal (Para. 3 of Article 306). Rulings of the Supreme Court which deal with constitutionality or illegality, whatever the process by which they are issued, have general legal force (Article 307). A declaration of unconstitutionality or illegality with general legal force takes effect from the effective date of the law which has been judged unconstitutional or illegal and the removal of the laws which have been revoked (Article 308).
 

THE CENTRAL AFRICAN REPUBLIC

Constitutional review was exercised by the Constitutional Council as an independent and special body with such powers as were determined by the Constitutional Act No. 60-163 of 12 December, 1960 (Article 32). Such regulations were adopted by Basic Act No. 61-238 of 1961, as well as by the later Constitution of 26 November, 1964.

Under the Constitution of 4 December, 1976, the power of constitutional review was granted to the Constitutional Chamber of the Supreme Court.

After the period when the civil constitutional order was suspended, the Constitutional Council was newly introduced by the Constitution of 5 February, 1981. The Council was composed of 6 members, which were appointed by the President of the Republic and by the Presidency of the Parliament.

Under the Constitution of 21 November, 1986, constitutional review is exercised by the Constitutional Council. Its members are appointed by the President of the Republic. The Council is only partially empowered to evaluate the constitutionality of statutes, similar to the so-called French model as follows: the preventative review of statutes before they have been promulgated by the President of the Republic and/or the President of the Parliament.

Under the new Constitution of 28 December, 1994, the Constitutional Court was established. it is instituted and charged with (Article 70; Articles 24, 26, 27, 28, 29, 30, 31, 32, 61, 64, 68):

- striving for the regularity of presidential, legislative, regional, and municipal elections, and with examining and proclaiming the results of balloting;
- resolving any electoral disagreements;
- resolving conflicts of competence between the executive power, the legislative power, and the territorial authorities;
- exercising a consultative function concerning constitutional amendments;
- the preventative review of international treaties;
- exercising preventative review of statutes;
- exercising preventative review of ordinances;
- exercising preventative review of the rules of procedure of the National Assembly;
- deciding on disagreements concerning amendments during the course of the legislative procedure;
- exercising a consultative function in the circumstances of a State of Emergency;
- deciding on the definitive incapacity or illness of the President of the Republic.

The Court is composed of 9 members who carry the title of counselors (Article 71). The non-renewable mandate is 9 years. The Court members are appointed as follows:

- 3 by the President of the Republic, of which at least two are jurists;
- 3 by the President of the National Assembly, of which at least two are jurists;
- 3 magistrates elected by their peers.

The Court decisions are not susceptible to any recourse. They impose themselves upon public powers, all administrative and judicial authorities, and all individuals (Article 74). Any text declared unconstitutional is null and of no effect; it may not be promulgated, nor applied (Article 71).

CHAD

The Constitutional Court as an independent body was established under Article 51 of the Constitution of 31 March, 1959. Under the constitutional amendments of 1960 and 1962, the function of constitutional review was granted to the Supreme Court in a plenary session (Article 64 of the Constitution of 16 April, 1962).

The Constitution (the "National Charter") dates from 20 December, 1989, and was amended on 28 February, 1991. It introduced the Supreme Court as the highest body of the judicial hierarchy, composed of the Constitutional Council, the Judicial Council, as well as the Administrative and Financial Council. Constitutional review is exercised by the Constitutional Council. The system of constitutional review was established under American and European influences, primarily under the influence of the model of the French Constitutional Council. The Supreme Court has 8 permanent members (Article 172), who are appointed by the President of the Republic upon his proposal and the proposal of the Parliament. They are appointed for 8 years (Article 173). The President of the Supreme Court is appointed by the Head of State; the President of the Supreme Court is at the same time the President of the Constitutional Council (Article 174). The powers of the Constitutional Council are (Article 175): the preventative review of the constitutionality of statutes, the constitutional review of international treaties (before the promulgation of statutes, before the promulgation of international treaties, as requested by the President of the Republic, the President of the Parliament or 1/4 of the members of the Parliament), and the review of the constitutionality of elections. The Constitutional Council may propose the issuance of new statutes or the amending of current statutes (Article 155).

The Constitution of the Republic of Chad of 14 April, 1996 introduced the Constitutional Council as a special independent State body (Article 164). The Council is composed of nine members including three magistrates and six jurists of a high level appointed in the following manner (Article 165):

The Council powers are as follows (Article 166):

- to judge the constitutionality of laws, treaties and international treaties;
- to review presidential, legislative and senatorial elections;
- to review the results of referenda;
- to exercise the preventative review of statutes;
- to exercise the preventative review of the rules of procedure of the Parliamentary chambers;
- to adjudicate jurisdictional disputes between State bodies.

The office of a member of the Council is incompatible with the office of a member of the Government, the exercise of any elective mandate, of any public function, and any other for-profit activity (Article 167).

Every citizen may request a review of the unconstitutionality of a matter before any jurisdiction regarding a matter that concerns them (Article 171). Council decisions are not susceptible to any recourse (Article 174). They bind public powers, and all administrative, military and judicial authorities.

COMOROS

The Constitutional Council as a special body empowered to exercise constitutional review was established by the Constitution of 1 October, 1978 (Article 33). In practice the Constitutional Council is represented by the Supreme Court, which works as a constitutional council if appropriate regarding constitutional matters.

It has the following powers:

- the review of presidential and parliamentary elections;
- the repressive review of the constitutionality of statutes and executive regulations;
- the preventative review of the constitutionality of statutes and executive regulations;
- impeachment concerning the liability of the highest State officials.

The Constitution of 30 October, 1996, introduced the High Council of the Republic, which among other matters also adjudicates constitutional matters (Article 49). It is composed of:

• to review the regularity of presidential and legislative elections;
• to review the regularity of the holding of referenda and proclaim the results;
• to exercise the preventative and repressive review of the constitutionality of laws, ordinances, treaties or international treaties, and any normative provision having the force of statute (Article 53).

CONGO

Constitutional review was introduced by the establishment of the Constitutional Chamber of the Supreme court of Congo (Congo Brazaville) under Article 58 of the Constitution of 2 March, 1961.

The Constitution of 8 December, 1963, in Subpara. 3 of Article 72 and in Article 73 determined that the Constitutional Court is composed of all chambers of the Supreme Court. This Constitutional Court was empowered to exercise the, constitutional review of statutes and international treaties. Subsequently, by the Reorganisation of the Judiciary Act No. 83-53 of 21 April, 1983, this body was remodeled into only one Constitutional Chamber of the Supreme Court.

On the basis of the Constitution of 8 July, 1979 (Article 86 through 93) the Constitutional Council was established as a constitutional review body by Ordinance No. 019184 of 23 August, 1984. Its activities were regulated in detail by Act No. 074-84 of 7 November, 1984, instituting the following powers: the preventative constitutional review of statutes and international treaties, the review of parliamentary elections, the review of the legality of referenda and the preventative constitutional review of internal acts of the Parliament. The President of the Republic appoints eight members of the Council, the other eight members are appointed by the Parliament. The President of the Republic also appoints the President and Vice-President of the Council. The office of a member of the Constitutional Council is incompatible with any other public office. The decisions of the Constitutional Council are indisputable and bind all State bodies.

It should be noted that the Constitution of Congo of 21 April, 1983, introduced the popular complaint (Article 69).

The Constitution of the Republic of Congo of 15 March, 1992, instituted the Constitutional Council (Article 138). The Council consists of nine members:

• two magistrates elected by the High Council of the Magistrate;
• two Law Professors from the University, elected by their peers,
• two Lawyers elected by their peers;
• three members, one each named by the President of the Republic, the President of the National Assembly, and the President of the Senate (Article 139). The members must have professional experience of at least 15 years. One third of the Council is renewed every two years. The President of the Council is elected by his peers for a duration of two years, and is re-electable (Article 40). The functions of a member of the Council are incompatible with those of a Minister or a Member of Parliament (Article 141). The Council is empowered:
• to exercise the preventative and repressive review of the constitutionality of laws, regulations and international treaties;
• to ensure the regularity of the election of the President of the Republic;
• to ensure the regularity of legislative elections;
• to ensure the regularity of referenda.

DJIBOUTI

The Constitutional Court (Cour constitutionnelle) was introduced by Constitutional Act No, L. R.177-002 of 27 June, 1977 (Article 2).

Under the Constitution of 1981, the empowered body exercising constitutional review is the Constitutional Council.

The Constitution of the Republic of Djibouti of 4 September, 1992, reintroduced the Constitutional Council as an independent body exercising constitutional review. It consists of six members, whose term of office lasts eight years and is not renewable. They are appointed as follows (Article 76):

- two by the President of the Republic;
- two by the President of the National Assembly;
- two by the High Council of the Judiciary.

- to ensure the regularity of all election;
- to ensure the regularity of all referenda;
- to exercise the preventative review of statutes and the rules of procedure of the National Assembly.

EGYPT

The Supreme Constitutional Court of Egypt was empowered by the Constitution of 11 September, 1971 (Articies 174 to 178 of the Constitution), amended on 22 May, 1980, as well as by the Supreme Constitutional Court Act No. 4811979 of 29 August, 1979. The Court is composed of the President and an "appropriate number" of judges appointed by the President of the Republic. The Court decides in chambers. Each chamber is composed of 7 judges. The President of the Constitutional Court is appointed by the President of the Republic by a special decree. Candidates applying for the office of judge of the Constitutional Court must fulfil the conditions necessary for office within the judiciary. The minimum age is 45 years. Constitutional Court Judges are chosen from among members of the Supreme Court, State officers, State employees or former State employees who have carried out the function of adviser for at least five years, from among professors of law with at least eight years’ experience, as well as from among lawyers with at least ten years’ experience. The office of Constitutional Court Judge is incompatible with other offices; the exceptions are legal activities within international organisations, foreign countries, as well as scientific activity. Constitutional court judges are irremovable.

The Constitutional Court is exclusively empowered to:

- review the constitutionality of statutes and executive regulations;
- decide on jurisdictional disputes between judicial bodies;
- decide on disputes concerning the enforcement of judgments of judicial bodies or other authorities exercising judicial power;
- interpret statutes and decrees of the President of the Republic concerning the Constitution in case of a different interpretation when it is necessary to assure the unity of the Constitution.

EQUATORIAL GUINEA

The Constitution of 15 August, 1982 established the State Council (Articles 99 to 103) as the highest State body specialized to review constitutional matters including the constitutionality of basic statutes as well as measures for their implementation. The State Council is also empowered to officially interpret such statutes, review presidential elections, as well as to determine the Presidents capacity to hold office. The Council is composed of 11 members’ 8 are appointed by the President of the Republic, two (of three remaining) are members by means of their current office, i.e. the President of the Supreme Court and the Minister of National Defense (which are practically appointed by the President of the Republic). In addition, the President of the Republic also appoints the President of the State Council.

The system of Equatorial Guinea also features habeas corpus proceedings.

The Fundamental Law of Equatorial Guinea of 16 November, 1991, introduced the Constitutional Court, which is created within the Supreme Court of Justice (Article 94). The Constitutional Court is composed of the President of the Supreme Court of Justice, as president, and four members appointed by the President of the Republic, of which two are nominated by the Chamber of People's Representatives.

The Court members are elected for four years.

The Court has jurisdiction in the following matters:

• the constitutionality of laws;
• the determination of the respective limits of statutes and regulations;
• provisions and judicial acts which violate fundamental rights and liberties recognized in the Fundamental Law;
• other matters vested in it by the Organic statutes:
• the regularity of Presidential and legislative elections and referenda (Article 95).

ERITREA

The Constitution of 23 May, 1997, empowered the Supreme Court as the court of last resort to exercise:

• sole jurisdiction to interpret the Constitution and the constitutionality of any statute enacted or any measure undertaken by the Government;
• sole jurisdiction to try and adjudicate charges against a President who has been impeached by the National Assembly pursuant to the Constitution.

ETHIOPIA

The Constitution of 21 August, 1995, established the Council of Constitutional Inquiry as a State body exercising constitutional review (Article 82). The Council has eleven members comprising:

• the President of the Federal Supreme Court, who serves as its
• President;
• the Vice-President of the Federal Supreme Court, who serves as its Vice-President;
• six legal experts, appointed by the President of the Republic on the recommendation of the Parliament, who have proven professional competence and high moral standing;
• three persons designated by the Parliament from among its members.

In principle, all constitutional disputes are decided by the Parliament (Article 83). The Parliament may, within thirty days of receipt, decide a constitutional dispute submitted to it by the Council.

The Council is empowered to investigate constitutional disputes (Article 84). Should the Council, upon consideration of the matter, find it necessary to interpret the Constitution, it shall submit its recommendations thereon to the Parliament. Where any federal or State statute is contested as being unconstitutional and such a dispute is submitted to it by any court or interested party, the Council considers the matter and submits it to the Parliament for a final decision. When issues of constitutional interpretation arise in the courts, the Council:

• remands the case to the concerned court if it finds there is no need for constitutional interpretation; the interested party, if dissatisfied with the decision of the Council, may appeal to the Parliament;
• submits its recommendation to the Parliament for a final decision if it believes there is a need for constitutional interpretation.

GABON

At first constitutional review was exercised by the Judicial Council (Article 37 of the Constitution of 19 February, 1959). Subsequently these functions were exercised by the Supreme Court in a plenary session (Article 66 of the Constitution of 14 November, 1960).

The Constitution of 21 February, 1961 (amended on 17 February, 1967, on 13 December, 1967, and on 29 May, 1968) determined in Article 59 that the Constitutional Chamber of the Supreme Court was empowered to exercise constitutional review.

The Constitutional Chamber was empowered to perform:

• the preventative review of draft statutes;
• the constitutional review of statutes;
• the preventative constitutional review of international treaties entered into by the State.

The Constitutional Chamber was composed of: the President of the Supreme Court, the President of the Judicial Chamber, the President of the Administrative Chamber and by the President of the Chamber of Auditors. The above mentioned members were appointed by the Head of State by a decree. Other members were also appointed by the Head of State, but only after previous consultation with political parties.

The new Constitution of 26 March, 1991 (Constitutional Act No. 03/91, amended by Act No. 01/94 of 18 March, 1994, and Act No. 001/97 of 22 April, 1997) established the Constitutional Court as a special and independent body of constitutional review (Chapter IV of the Constitution). It is a body exclusively empowered to exercise constitutional review (Article 83) with the following powers:

• the preventative review of the constitutionality of basic (on the request of the Prime Minister) and other statutes (on the request of the President of the Republic, the Prime Minister, the President of the Parliament, a group of representatives, the President of the Supreme Court, or any citizen or person affected by such a statute or act) before their promulgation;
• the preventative review of the constitutionality of other regulations of State bodies;
• the adjudication of jurisdictional disputes between State bodies;
• the review of the constitutionality or legality of all electoral procedures (on the request of any voter, candidate, or any political party);
• the review of referenda;
• the concrete review of norms on the request of a court, concerning a particular case (Article 86);
• the preventative review of the constitutionality of international treaties before their ratification (Article 87);
• the interpretation of the Constitution, on the request of the President of the Republic, the Prime Minister, the President of the Parliament or a group of representatives (Article 88).

Each year the Constitutional Court (Article 91) reports on its activities to the President of the Republic, the President of the Parliament, as well as to the President of the Supreme Court.

There is no legal remedy against Constitutional Court decisions (Article 92). The decisions bind all State bodies and individuals.

The organisation and activities of the Constitutional Court are regulated by statute (Article 93).

GAMBIA

Under the Constitution of 1965 the Supreme Court was empowered to exercise constitutional review.

The regulation introduced by the Constitution of 24 April, 1970, as well as by the Constitution of 7 August, 1996, generally adopted the American system of a diffuse constitutional/judicial review.

GHANA

The first Constitution of 1957 (the Independence Constitution of 1957) determined under Para. 5 of Article 31 that the Supreme Court has original and explicit jurisdiction in all proceedings which concern the validity of a statute. A similar regulation was adopted by the next Constitution of 1960 (the Republican Constitution of 1960) in Para. 2 of Article 42.

The Constitution of 1969 (the 1969 Second Republican Constitution of Ghana) determined in Para. 1 of Article 106 that the Supreme Court has original jurisdiction concerning:

• all cases which concern the validity or interpretation of the Constitution;
• the constitutional review of any regulations (issued by the Parliament or other State bodies);
• the concrete review of norms on the request of an ordinary court.

The new Constitution of Ghana of 28 April, 1992, adopted the American system of judicial review, including human rights protection proceedings i.e.: habeas corpus, certiorari, mandamus, prohibition and quo warranto.

GUINEA

The Fundamental Law of the Second Republic of Guinea of 23 December, 1990, empowered the Supreme Court to exercise constitutional review. The Supreme Court has the authority to determine the constitutionality of laws and international treaties (Articles 64, 67, 78 and 83). It also has the authority to determine in first and last resort any recourse against the acts of the President of the Republic (Articles 38, 60, 74 and 83), as well as recourse against ordinances, before their ratification (Articles 66 and 83).

The Supreme Court also has the authority to determine in first and last resort any recourse against the elections to the National Assembly and to local assemblies.

IVORY COAST

The Constitution of 3 November, 1960 and Constitutional Act No. 60-356 (amended on 11 January, 1963, 22 October, 1975, 1 September, 1980, 26 November, 1980, 12 October, 1985, 31 January, 1986, and 6 November, 1990, 2 July, 1998) introduced by Article 57 the Constitutional Chamber of the Supreme Court as the empowered constitutional review body. The activities of the Constitutional Chamber are regulated in detail by Act No. 61-201 of 2 June, 1961 (later amended by Act No. 78-663 of 5 August, 1978).

The Constitutional Chamber is presided over by the President of the Supreme Court, In addition, it’s also composed of the Vice-President of the Supreme Court and four members appointed for five years. Two members are appointed by the President of the Republic, two by the President of the National Assembly. Candidates for the Constitutional Chamber must be persons with high reputation and experience in the field of constitutional matters.

Generally speaking, the system was established following the French system and/or the model of the French Constitutional Council. The Council has the following powers:

• preventative constitutional review of international treaties (Article 55);
• preventative constitutional review of statutes (Article 23). A preventative review may be requested by the President of the Republic or by the President of the Parliament. The possibility of ex officio proceedings is excluded;
• review of presidential elections (Article 1 0);
• review of parliamentary elections (Article 29);
• review of referenda (Article 4);
• impeachment against the President of the Republic (Article 11).

The decisions of the Constitutional Chamber are final.

MADAGASCAR

Madagascar is one of the African countries with the oldest and relatively continuously developed system of constitutional review.

Under the Constitution of 29 April, 1959 (amended on 1 July, 1969), the Supreme Council (conseil superieur (supreme) des institutions) was empowered to exercise constitutional review (Article 45) with the following powers:

• preventative and repressive review of statutes (Article 47);
• preventative and repressive constitutional review of ordinances (Article 45);
• preventative and repressive constitutional review of decrees Article 33);
• preventative constitutional review of international treaties (Subpara. 4 of Article 14 as well as Subpara. 1 and 3 of Article 48).

The next Constitution of Madagascar of 31 December, 1975, reintroduced the Supreme Constitutional Court (Haut Cour Constitutionnelle) composed of seven members. Two of them were appointed by the President of the Republic, two by the Supreme Revolutionary Council, two by the National Assembly and one by the Government. As a body with some political characteristics (Article 88 of the Constitution), it was empowered to exercise: the repressive constitutional review of statutes, ordinances and autonomous charters, to adjudicate jurisdictional disputes between State bodies and decentralized institutions (Article 88), to review presidential elections, to appoint members of the Supreme Revolutionary Council, as well as to review representatives' elections (Article 91). In addition, the Court was empowered to exercise some kind of preventative constitutional review: the President of the Republic could consult the Constitutional Court concerning all draft statutes (bills) or draft decrees. The organisation and work of the Constitutional Court were regulated by executive statute.

Under the new Constitution of 18 September, 1992 (amended on 16 August, 1995), the Constitutional Court decides on the constitutionality of international treaties, statutes, ordinances and autonomous regulations, adjudicates jurisdictional disputes between State bodies as well as between central and decentralised collective bodies (Article 106). The Court reviews presidential and representatives' elections as well as the results of referenda (Article 109). It is empowered to exercise preventative constitutional review of statutes at the request of the President of the Republic (Articles 110, 111 and 112). The Constitutional Court also decides on impeachment motions against the President of the Republic resulting from alleged violations of the Constitution (Article 50). It is empowered to exercise the concrete review of norms at the request of an ordinary court concerning concrete proceedings (Article 113).

The Court is composed of nine members (Article 107) appointed for six years. Re-election is not allowed. Three members of the Court are appointed by the President of the Republic following the proposal of the Council of Ministers, two are appointed by the Parliament, one by the Senate, three by the Supreme Council of Magistrature. The President of the Court is elected by the members of the Court from among themselves; the election is confirmed by presidential decree. The office of Constitutional Court Judge is incompatible with the office of a member of the Government, the Parliament, with elected public office, with paid professional activity, as well as with membership in a political party or in trade union (Article 108).

MALI

In the former Federal Republic of Mali, the Constitutional Chamber of the Federal Court was empowered to carry out constitutional review (Article 48 of the Constitution of 17 January, 1959).

By the Constitution of 22 September, 1960, the Constitutional Chamber of the State Court became empowered to review the constitutionality of statutes (Article 42).

Instead of the Constitutional Chamber of the State Court, constitutional review was later carried out by the Constitutional Chamber of the Supreme Court (Act No. 65-1 and No. 65-2/A.N.R.M. of 13 March, 1965). It is characteristic of the regulation of this period that the Constitutional Chamber of the Supreme court was empowered to act ex officio. The institution of the Constitutional Chamber as a specialized chamber of the Supreme Court empowered to exercise constitutional review was also adopted by the subsequent Ordinance No. 1/CM L.N. of 28 November, 1968, as well as by the later Constitution of 2 June, 1974 (Article 66). The members of the Constitutional Chamber were appointed by the President of the Republic following the proposal of the Minister of Justice.

By the new Constitution of 25 February, 1992, the Constitutional Court was established as a completely independent body concerning its relationship to the legislative branch (Article 85). It has the following powers (Article 86):

• the preventative constitutional review of statutes (following the proposal of the President of the Republic, the Prime Minister, the President of the Parliament, 1/10 of the representatives, or some other of the highest State bodies);
• the preventative constitutional review of international treaties following the proposal of the above legitimate petitioners;
• the constitutional review of administrative acts which concern constitutional rights and freedoms;
• the preventative constitutional review of the internal rules (i.e. rules of procedure) of the Parliament and other highest State bodies;
• the adjudication of jurisdictional disputes between State bodies;
• the review of elections;
• the review of the legality of referenda.

The decisions of the Constitutional Court are indisputable and binding on all State bodies and individuals. The organisation, work and proceedings of the Constitutional Court are regulated by statute (Article 94).
 
 

MOROCCO

The Constitution of 1962 followed by the Constitution of 31 July, 1970 (amended in 1972) introduced the Constitutional Chamber of the Supreme Court as a constitutional review body (Chambre Constitutionnelle de la Cour Supreme du Maroc, Articles 93 and/or 96).

On the basis of Article 95 of the Constitution, the organisation and work of the Constitutional Chamber was regulated by the Act of 9 May, 1977. The Chamber was composed of six members empowered first of all to exercise the preventative constitutional review of statutes. Three members were appointed by the King, including the President and three members were appointed by the President of the Chamber following consultation with political parties.

By the Constitution of 7 October, 1996, the Constitutional Council was established. The Council comprises six members appointed by the King for a period of nine years and six members appointed for the same period, one-half by the President of the Chamber of Representatives, one-half by the President of the Chamber of Counselors, after consultation with political parties. Each category of membership is renewable by thirds every three years (Article 79). The President of the Council is chosen by the King from among the members he appoints. The term of the President and of the members of the Council is not renewable.

The Council has the following powers (Article 81):

• to review the legality'of parliamentary elections;
• to review the legality of referenda;
• to exercise the preventative review of statutes and the rules of each parliamentary chamber.

MAURITANIA

The Constitution of 22 March, 1959 (amended on 20 May, 1961, 24 April, 1964, 12 February, 1965, 12 July, 1966 and 4 March, 1968) introduced the Supreme Court as a constitutional review body (Article 41).

The Supreme Court was empowered to exercise:

- the preventative constitutional review of statutes (Article 45);
- the preventative constitutional review of international treaties (Article 45).

The new Constitution of 12 July, 1991, introduced the Constitutional Council as the constitutional review body. The Council is composed of six members, whose mandate is nine years and is not renewable (Article 81). One third of the Council is chosen every three years. Three of the members are appointed by the President of the Republic, two by the President of the National Assembly and one by the President of the Senate. The members of the Council must be at least 35 years old. They may not belong to the leadership of any political party. They enjoy parliamentary immunity. The President of the Council is appointed by the President of the Republic from among the members whom he names. The office of a member of the Council is incompatible with that of a member of the Government or of the Parliament (Article 82).

The Council has the following powers (Articles 83 to 86):

- to evaluate the legality of presidential and parliamentary elections;
- to evaluate the legality of referenda;
- to exercise the preventative review of statutes and regulations.

MAURITIUS

The Constitution of 12 March, 1968 (amended in 1982, 1983, 1986, 1990, 1991, 1992, 1994, 1995, 1996, 1997) determines that the Supreme Court is empowered to decide on the complaints of individuals concerning violations of their constitutional rights (Article 17). The current constitutional review model, similar to the Indian system, is called the New (British) Commonwealth Model. It cannot be classified either under the American or the European model. It is characterized by a concentrated constitutional review under the jurisdiction of the Supreme Court consisting of ordinary judges without political nomination; it focuses on preventative (a priori) review and the consultative function of the Supreme Court, although repressive (a posteriori) review is also possible; decisions take an erga omnes effect (Articles 83 and 84).

MOZAMBIQUE

Under the Constitution of 2 November, 1990 the Constitutional Council as a constitutional review body is empowered to exercise the following powers (Articles 180 through 184):

- constitutional review of statutes and executive regulations of State bodies;
- adjudication of jurisdictional disputes between State bodies;
- review of the legality of referenda;
- review of electoral procedures;
- verification of statutorial conditions applying to candidates for the office of the President of the Republic.

The decisions of the Constitutional Council are indisputable and are published in the Official Gazette of the Republic.

The composition, organisation and work of the Constitutional Council and its proceedings are regulated by statute.

NAMIBIA

The Constitution of 9 February, 1990, introduced the American system of a diffuse constitutional review. Such review is exercised by all courts. Furthermore, the Constitution determines the principle of the independence of courts.

The Supreme Court is the highest constitutional review body (Article 79). It is composed of the President of the Court and by such number of judges as appointed by the President of the Republic following the recommendation of the Judicial Commission.

The Court is empowered to interpret the Constitution, to review the implementation of the Constitution and to protect basic rights and freedoms.

The decisions of the Supreme Court have an erga omnes effect (Article 81).

NIGER

The Constitution of 29 July and 3 November, 1991, adopted the elements of the former Constitutions of 18 December, 1958, 12 March, 1959 (i.e. the Constitutional Department of the State Court under Article 48 of the Constitution) and of 3 August, 1968.

Constitutional review is exercised by the Constitutional Chamber of the Supreme Court, which is composed of the Judicial Chamber, the Administrative Chamber, the Chamber of Auditors and the Budgetary Chamber (Para. 1 and 2 of Article 104).

The composition, organisation, proceedings and work of the Supreme Court are regulated by statute (Para. 3 of Article 104 of the Constitution). The Budget of the Supreme Court is a part of the State budget (Para. 2 of Article 97).

The powers of the Constitutional Chamber are as follows (Article 98):

• preventative constitutional review of statutes, on the request of the President of the Republic, the President of the Parliament, the Prime Minister or one tenth of the representatives (Para. 1 through 4 of Article 98, Para. 2 of Article 84, Para. 3 of Article 87, Article 92);
• popular complaint concerning the constitutional review of statutes (Para. 5 of Article 98);
• review of presidential elections (Para. 3 of Article 40);
• impeachment (Article 44):
• review of representatives' elections (Article 64).

The new Constitution of 26 December, 1992, extensively amended on 22 May, 1996, adopted the former regulation and also introduced a special chamber of the Supreme Court empowered to exercise constitutional review. The Supreme Court has the following powers (Articles 94, 95, 102, 103):

preventative constitutional review of organic statutes and internal regulations of the highest State bodies;

concrete constitutional review of statutes;

adjudication of jurisdictional disputes between State nstitutions;

review of the legality of presidential, legislative and local elections;

review of the legality of referenda;

interpretation of the Constitution.

NIGERIA

The Constitution (Decree of 3 May, 1989, enforced on 1 October, 1992) empowers the Supreme Court as a constitutional review body (Article 228). It is composed of its President and by such number of judges as determined by statute, but the number may not exceed 15 judges. The members of the Supreme Court are appointed by the Head of State (Article 229). The candidates should have at least 15 years of experience in the country.

The Supreme Court is empowered:

• to adjudicate jurisdictional disputes between the Federation and member states or between member states themselves (Article 230). In such proceedings the decision making process of the Court is exercised in a plenary session (Article 233);
• to review presidential and vice-presidential elections (Article 232).

RWANDA

Initially, Rwanda introduced a constitutional review exercised by the Constitutional Chamber of the Supreme Court (Article 102 of the Constitution of 24 November, 1962).

By the Constitution of 20 November, 1978, the Constitutional Court was established as an independent body with special jurisdiction. The Supreme Cassation Court and the State (National) Council together form the Constitutional Court. By introducing such a system, Rwanda placed itself among the countries which separate constitutional review from the ordinary judiciary.

The Constitution of 10 June, 1991, reestablished the Constitutional Court, composed of the Court of Cassation and the Council of State assembled, which is in charge of reviewing the constitutionality of statutes and statutory orders. It alone is competent to order the forced resignation of the President of the Republic (Article 90).

SENEGAL

Under the Constitution of 1960, the Supreme Court was not empowered to carry out constitutional review.

However, the Constitution of 7 March, 1963 (amended on 20 June, 1967, 14 March, 1968, and 26 February, 1970) introduced the Supreme Court as a constitutional review body (the last Subparagraph of Article 47). The powers of the Supreme Court were as follows:

• preventative constitutional review of statutes (Article 63);
• preventative constitutional review of international treaties (Article 78).

The former constitutional basis for the system of constitutional review was in the Constitution of 7 March, 1963, amended on 20 June, 1967, 14 March, 1968, 26 February, 1970, 19 March, 1976, 6 April, 1976, 28 December, 1978, 6 May, 1981, 1 May, 1983 and 24 March, 1984, as well as on 3 September, 1992 and on 13 June, 1994. Under this regulation, the Court was composed of: its President, three presidents of chambers, the public prosecutor, the State legal officer, 14 judges and 15 advisers. The members of the Supreme Court were appointed by decree, and their office is for life. The Court had the following powers: the review of presidential elections, the review of the organisation of referenda, the preventative constitutional review of basic and other statutes, the preventative constitutional review of international treaties (generally, on the request of the President of the Republic), impeachment against the President of the Republic, the protection of the constitutional rights of individuals, the review of the implementation of the budget, and a cassatory power above the ordinary courts.

Under the regulation in force, the Constitutional Council was introduced (Article 80). The Council is comprised of five members: a President, a Vice-President and three judges. The duration of their mandates is six years. The Court is partially renewable every two years starting with the President or two members other than the President, in an order based on the date of the end of their mandates (Article 80). The members of the Council are appointed by the Head of State. The mandate of Council members cannot be renewable. It is only possible to terminate the office of Council members before the expiration of their mandate due to their physical incapacity, and under conditions specified by organic statute.

The Council is the guardian of the rights and freedoms defined by the Constitution and statute (Article 82).

The Council reviews the constitutionality of statutes and international obligations, and jurisdictional disputes between the executive and the legislative branches, conflicts of competence between the Council of State and the Court of Cassation, as well as of claims of unconstitutionality raised before the Council of State or the Court of Cassation (Article 82).

Except in cases of flagrant offense, Council members can only be prosecuted, arrested, detained or judged in a criminal matter with the authorisation of the Council and under the same conditions as the magistrates of the Council of State and the Court of Cassation (Article 83).

Organic statute determines the other powers of the Constitutional Council, as well as its organisation, the regulations for appointing its members and the proceedings to be followed before it (Article 84).

THE SEYCHELLES

The Constitution (Third Republic) of 21 June, 1993 introduced the function of the Supreme Court as Constitutional Court (Article 129). Such jurisdiction and powers are exercised by not less than two judges sitting together.

Constitutional questions before the Constitutional Court may be initiated by any affected individual (Article 130). Upon hearing an application, the Constitutional Court may:

• declare any act or omission which is the subject of the application to be a contravention of the Constitution;
• declare any statute or the provision of any statute which contravenes the Constitution to be void;
• grant any remedy available to the Supreme Court against any person or authority which is the subject of the application or which is a party to any proceedings before the Constitutional Court, as the Court considers appropriate.

SIERRA LEONE

Under the Constitution of I October, 1991, the Supreme Court is empowered to perform constitutional review. It is composed of its president, at least four permanent judges and an appropriate number of other judges (Article 121 of the Constitution).

The Supreme Court has original and exclusive jurisdiction in all matters concerning the implementation of the Constitution as well as the power of constitutional review following the model of the American system of diffuse review (Article 124 of the Constitution). The following proceedings may be initiated before the Supreme Court: habeas corpus, certiorari, mandamus and prohibition (Article 125 of the Constitution). The Constitution also allows individual complaint (Para. 1 of Article 127 of the Constitution).

The Court decisions are final and indisputable (Article 122 of the Constitution).

SOUTH AFRICA

The country was established in 1910 by the unification of former British colonies under the South Africa Act 1909,9 Edward VII, Ch. 9. The further constitutional documents are the British Statute of Westminster 1931 (22 Geo. V, Ch.4) as well as the South African Status of the Union Act 1934 (the Act No. 69, 1934) and the Republic of South Africa Constitution Act 1961 (the Act No. 32, 1961). From the beginning, the country adopted the British legal system with all its elements, which meant that the constitutional review was not included. Following such regulation, the Supreme Court functioning under the Constitution of 1961 and the Supreme Court of 1969 were not empowered to exercise constitutional review.

The Court was established in 1994 by South Africa's first democratic constitution - the interim Constitution of 1993. By the 1996 Constitution, the Court established in 1994 continues to hold office. The eleven member Court held its first session in February 1995. The Court members may serve for a non-reappointable term of 12 years, and must retire at the age of 70. They are all independent. Their duty is to uphold the law and the Constitution, which they must apply impartially and without fear, favour or prejudice.

The Constitutional Court consists of a President, a Deputy President and nine other judges. A matter before the Constitutional Court must be heard by at least eight judges. The Constitutional Court (Article 167 of the Constitution) is the highest court in all constitutional matters. The Court:

• may only decide constitutional matters and issues connected with decisions on constitutional matters;
• issues the final decision on whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

• decide disputes between State bodies in the national or provincial sphere concerning the constitutional status, powers or functions of any of those State bodies;
• decide on the constitutionality of any parliamentary or provincial Bill;
• decide on applications by members of National Assembly or members of a provincial legislature to the Constitutional Court for an order declaring that all or part of an Act of Parliament or an Act of a provincial legislature is unconstitutional;
• decide on the constitutionality of any amendment to the Constitution;
• decide that the Parliament or the President has failed to fulfil a constitutional obligation; or
• certify a provincial constitution.

The national legislation and the Rules of the Constitutional Court allow a person, when it is in the interest of justice and with leave of the Constitutional Court:

• to bring a matter directly to the Constitutional Court; or
• to appeal directly to the Constitutional Court from any other court.

The Constitution requires that a matter before the Court is heard by at least eight judges. In practice, all eleven judges hear every case. If any judge is absent for a long period or a vacancy arises, an acting judge may be appointed by the President of the Republic on a temporary basis. Decisions of the Court are reached by a majority vote of the judges sitting in that case. Each judge must indicate his or her decision. The reasons for the decision are published in a written judgment.

The Court played an important role in the adoption of the 1996 Constitution. Concerning the Interim Constitution, the Parliament sitting as the Constitutional Assembly was required to produce a new constitutional text. In turn, the Court was required to certify that the new text complied with the 34 Constitutional Principles agreed upon in advance by the negotiators of the Interim Constitution. In its decision on the Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) (6 September, 1996) the Court ruled that the constitutional text adopted by the Constitutional Assembly in May 1996 could not be certified. The Court identified the features of the new text that did not in its view comply with the Constitutional Principles and gave its reasons for that view. The Constitutional Assembly then had to reconsider the text, taking the Court's reasons for non-certification into account. The Constitutional Assembly reconvened and on 11 October, 1996, adopted an amended constitutional text containing many changes from the previous text, some dealing with the Court's reasons for non-certification and others tightening up the text. The amended text was then sent to the Constitutional Court for certification. In its judgment contained in the Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 (4 December, 1996) the Court held that all of the grounds for the non-certification of the earlier text had been eliminated in the new draft, and accordingly certified that the text complied with the requirements of the Constitutional Principles. The text duly became the Constitution of the Republic of South Africa, 1996 and came into effect in February 1997.

The judgments of the Court are based on the Constitution, which is the supreme law of the land. They guarantee the basic rights and freedoms of all persons. They are binding on all organs of government, including the Parliament, the Presidency, the police force, the army, the public service and all courts. This means that the Court has the power to declare an Act of Parliament null and void if it conflicts with the Constitution and to review executive actions in the same way.

When interpreting the Constitution, the Court is required to consider international human rights laws and may consider the law of other democratic countries. The Constitutional Court is the highest court in the land for all constitutional matters.
 
 

KWAZULU-NATALITHE FEDERAL REPUBLIC OF SOUTH AFRICA

The position of the Constitutional Court was regulated by the Resolution of the Legislative Assembly of 1 December, 1992. The Constitutional Court had original and exclusive powers concerning the following matters:

• constitutional review of State legislation;
• constitutional review of regional legislation;
• deciding on non-conformity between State and regional legislation;
• deciding on jurisdictional disputes between regions within the State;
• constitutional review of federal legislation;
• deciding on jurisdictional disputes between federal and State bodies;
• impeachment against the governor and ministers;
• validity and legality of collective agreements;
• constitutional review of the statutes of political parties;
• other matters as determined by the Constitution or the Constitutional Act.

The Constitutional Court was composed of 15 members. Three were appointed by the Governor, six by the Parliament, three by the Judicial Council and three by the Bar Chamber. When deciding on impeachment, the Constitutional Court was able to extend its composition with additional members. Their qualifications and powers were determined by the Constitutional Court. Constitutional Court Judges were appointed from among lawyers and attorneys at law with more than 20 years of professional practice, professors of law and from among judges of the highest courts. Even foreign citizens were entitled to apply for the position of Constitutional Court Judge. They were appointed for 10 years; re-election was not possible. The office of constitutional court judge was incompatible with any other public office or with any professional activity on the territory of South Africa. After retirement, Constitutional Court Judges were not allowed to hold any public office. The Constitutional Court worked also in chambers composed of four or more judges. The members of the Constitutional Court appointed their president from among themselves for three years. The Constitutional Court was empowered to regulate its own organisation and work by its own internal regulation. Members of the Constitutional Court enjoyed immunity; however, they could be charged with a crime by 3/4 of the representatives of both parliamentary chambers. The salaries of Constitutional Court Judges were determined by statute, and they could not be lower than the salaries of ministers. The Constitutional Court created and proposed its own budget to the Parliament directly.

SUDAN

Originally constitutional review was exercised by the Constitutional Chamber of the State Court (Article 44 of the Constitution of 23 January, 1959).

Under the Constitution of 10 October, 1985, the protector of the Constitution and statutes is the Supreme Court (Articles 125 through 128), with the following powers:

• the interpretation of the Constitution and statutes;
• the constitutional review of statutes;
• the protection of basic rights and freedoms.

Under the (Federal) Constitution of 24 December, 1995, the constitutionality of any statute passed by the (Federal) National Assembly or a provisional decree issued by the President of the Republic, or a member state law passed by the member state Assembly, or a provisional decree issued by the member state Government, may be challenged before the Supreme Court, on the basis that such a statute or decree is in conflict with the federal constitutional system or contravenes any of the human rights enshrined in the Constitution (Article 68).

TOGO

Constitutional review was introduced by the establishment of the Constitutional Chamber of the Supreme Court (Article 70 of the Constitution of 11 May, 1963). The same institution was reintroduced by the Constitution of 30 December, 1979 (Article 44). The Constitutional Chamber of the Supreme Court was composed of: the President of the Supreme Court and five members, who were appointed by the Council of Ministers following the proposals of political parties.

Under the new Constitution of 14 October, 1992, constitutional review is exercised by the Constitutional Court as the highest jurisdiction of the State regarding constitutional matters (Article 99). The Court is composed of seven members, of which two are elected by the National Assembly upon the proposal of the President of the Assembly, one member appointed by the President of the Republic, one member appointed by the Prime Minister, one magistrate elected by his peers, one lawyer elected by his peers, and one professor of law elected by his peers, for a non-renewable term of seven years (Article I 00). During the first term, two members of the Court are elected by the Parliament for three years and one member is appointed by the President of the Republic for three years. The Court President is elected by his peers for a renewable term of three years (Article 101). Court members enjoy immunities (Article 102); their office is incompatible with other government office, any elected office, public employment and with any professional activity (Article 103). The organization and functioning of the Court, the proceedings, and the disciplinary codes relating to Court members are established by an organic statute (Article 103). The Court has the following powers:

• to exercise the preventative constitutional review of statutes and the rules of procedure of the highest State bodies;
• to exercise the concrete (repressive) constitutional review of statutes requested by an ordinary court;
• to exercise a consultative function.

TUNISIA

Constitutional review is exercised by the State Council (Article 69 of the Constitution of 1 June, 1959, amended in 1965, 1967, 1969, 1975, 1976, 1981, 1988, 1993), which was established in 1987. It is composed of professors of law and judges. Its powers are very limited; generally, it has only a consultative power.

UGANDA

Under the Constitution of 27 September, 1995, any question as to the interpretation of the Constitution is determined by the Court of Appeals sitting as the Constitutional Court (Article 137). When sitting as a Constitutional Court, the Court of Appeals consists of a bench of five members of that Court. A person who alleges that an act of Parliament or any other law or anything in or done under the authority of any law, or an act or omission by any person or authority, is inconsistent with or in contravention of a provision of the Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.

Where any question as to the interpretation of the Constitution arises in any proceedings in a court of law other than a Field Court Martial, the court may, if it is of opinion that the question involves a substantial question of law, and, if any party to the proceedings requests it to do so, refer the question to the Constitutional Court for a decision.

ZAIRE

The Constitutional Court of Zaire (the Belgian Congo, the Democratic Republic of Congo) was established as an independent constitutional review body by the Basic Act of 19 May, 1960, as well as by the Constitution of 1 August, 1964. By the Constitution of 24 June, 1967, the same constitutional review system was adopted (Para. 4. of Article 19). The Constitutional Court had the following powers (Article 71 of the Constitution):

• the constitutional review of statutes and other acts having the force of statute;
• the adjudication of jurisdictional disputes between the highest State bodies;
• the interpretation of the Constitution;
• the preventative constitutional review of international treaties (Subpara. 4 of Article 68 of the Constitution).

The mentioned system was amended by Act No. 74-020 of 15 August, 1974, which gave constitutional review power to the Supreme Court. This new power of the Supreme Court was adopted by the subsequent Act of 15 February, 1978, as well as by the Constitutional Act of 19 February, 1980.

The further Constitution of 27 June, 1988, established in Article 103 the following powers of the Supreme Court (Cour Supreme de Justice): determining the constitutionality of statutes and other acts having the force of statute, the interpretation of the Constitution as well as the constitutional review of other acts issued by other State bodies.

The new Constitution of 5 July, 1990, again vested in the Supreme Court the constitutional review function with the following powers: the constitutional review of statutes and other acts having the force of statute, the interpretation of the Constitution, the review of presidential and parliamentary elections, as well as the review of the legality of referenda (Article 103 of the Constitution).

ZAMBIA

The Constitution of 1991 (amended in 1996) introduced a special Tribunal, which may be appointed by the Chief Justice (Article 27). The Tribunal consists of two persons selected by the Chief Justice from among persons who hold or have held the office of a judge of the Supreme Court or the High Court. The Tribunal is empowered to exercise:

• the preventative review of the constitutionality of bills (within three days after the final reading of the bill in the Assembly);
• the repressive review of the constitutionality of statutory instruments (within fourteen days of the publication of the instrument in the official gazette);
• the concrete review of constitutionality when requested by an ordinary court.

The Constitution of Zimbabwe Amendment (No. 9) Act, 1989, introduced the parliamentary review of constitutionality. For this purpose the Parliamentary Legal Committee was established (Article 4OA). The Parliamentary Legal Committee consists of such number of members of Parliament, other than Ministers, being not less than three, as the Committee on Standing Rules and Orders may from time to time determine, the majority of whom must be legally qualified as follows: they must have been a judge of the Supreme Court or the High Court; or qualified to practice law in Zimbabwe for not less than five years, whether continuously or not; or have been a magistrate in Zimbabwe for not less than five years; or possess such legal qualifications and such legal experience as the Committee on Standing Rules and Orders considers suitable and adequate for their appointment to the Parliamentary Legal Committee.

The Parliamentary Legal Committee examines (Article 40B):

• every bill, other than a constitutional bill, which has been introduced in Parliament;
• every bill, other than a Constitutional bill, which is. amended after its examination by the Committee, before the bill is given its final reading in Parliament;
• every draft bill transmitted by a Minister to the Secretary of the Parliament for reference to the Committee;
• every statutory instrument published in the official gazette;
• every draft statutory instrument transmitted by the authority empowered to do so to the Secretary of the Parliament for reference to the Committee.

It is the duty of the Parliament to consider any report presented to it which states that, in the opinion of the Parliamentary Legal Committee, a provision of a bill would, if enacted, be in conflict with the Declaration of Rights or any other provision of the Constitution.