Legal traditions and the fragmentation of human rights in Africa

Mr Jonas Kakule Sindani

Jonas Kakule Sindani is currently pursuing a PhD in Legal Sciences through a joint program between the Université Catholique de Louvain in Belgium and the Université Catholique de Bukavu in the Democratic Republic of Congo. His academic journey includes an LLM in Human Rights and Democratisation in Africa from the University of Pretoria, South Africa and an LLB in International Law from the Université de Goma, DR Congo. Jonas actively engages in research on human rights through his involvement with both the Equipe Droits et Migrations (EDEM) and the Centre de Recherche en Droits de l’Homme et Droit International Humanitaire (CERDHO).

Introduction

This paper examines how differences in legal traditions inherited from colonisation have shaped the recognition and implementation of human rights in African constitutions. The concept of legal tradition is broad and complex. Distinguishing one legal tradition from another requires consideration of elements such as sources of law, legal reasoning, institutional structures—including judicial, executive, and legislative frameworks—and underlying legal ideologies (PD Cruz, Comparative Law in a Changing World, 1999, pp. 26-27). For this analysis, it is understood in the sense defined by Merryman:

A set of deeply held and historically conditioned attitudes about the nature of law, the role of law in society and politics, the proper organization and functioning of a legal system, and the way in which law is or should be made, applied, studied, developed, and taught (Merryman, The civil law tradition: An introduction to the legal systems of Western Europe and Latin America, 1984, p. 2)

Despite the struggles for independence and the colonial legacy of governance, newly independent African states largely retained the legal traditions and institutional models of their former colonial powers—either civil law or common law. As applied in African states today, the civil law tradition traces its origins to ancient Roman law, originally conceived as a system governing private relations among citizens within a state. It is primarily codified, in contrast to the common law tradition, which evolved as a body of judicial precedents developed through case law rather than statutory codification. In common law jurisdictions, legal gaps may arise where no explicit legislative provision or binding precedent exists, whereas, in civil law systems, such gaps emerge where a legal issue is not addressed within existing codes (CM Fombad, “Comparative Research in Contemporary African Legal Studies” (2018) 67(4) Journal of Legal Education, p. 984)

Colonial history largely determined the legal traditions adopted by African states. Countries under French colonial rule predominantly adhered to the civil law system, whereas those under British rule followed the common law system. This division reflects the legal traditions of France and England, the two principal European colonial powers in Africa. Other colonising states, such as Germany, Italy, Portugal, Belgium, and Spain, were involved to a lesser extent and, in most cases, imposed civil law systems. Three main factors explain this phenomenon of legal and institutional mimicry. First, under colonisation, African communities labelled as “indigenous” were compelled to abandon their traditional governance systems and adapt to European models, deemed “modern and civilised”. Second, the national elites who took over governance had been shaped within colonial institutions. Lacking the capacity—or perhaps the vision—to develop legal systems tailored to their own societies, they naturally retained the structures with which they were already familiar. Finally, the process of effective colonisation itself necessitated the establishment of a legal framework designed to maintain control over the territories. This system, once entrenched, persisted even after independence.

An examination of African constitutions reveals that colonial legal traditions have significantly influenced the formulation of human rights provisions, the mechanisms for constitutional amendment, and the mandates of constitutional courts responsible for interpreting and enforcing human rights.

Bill of Rights: The wording

Following the so-called third wave of democratisation that swept through Africa in the early 1990s, most countries have become constitutional democracies that function under modern principles of constitutionalism, such as the recognition and respect for fundamental human rights. The legal traditions inherited from colonial rule deeply influence the recognition and protection of fundamental rights and freedoms in African constitutions. In civil and common law jurisdictions, bills of rights are embedded within constitutional texts. However, a notable distinction exists between the two systems regarding the formulation, scope, and interpretative mechanisms of these rights.

African civil law constitutions, particularly in countries such as the Democratic Republic of Congo (DRC), Niger, Togo, and Côte d’Ivoire, typically enumerate fundamental rights in a broad and often “formalistic” manner. These constitutions frequently reference international human rights instruments, such as the Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights, in their preambles. However, they provide limited details on the specific content of these rights and the modalities of their exercise and limitations. Furthermore, the implementation of rights is frequently left to organic laws. The latter are enacted by Parliament through a more stringent and rigorous procedure than ordinary laws, with the primary objective of specifying the implementation of constitutional provisions. In practice, however, the adoption of these laws by Parliament is often delayed by procedural complexities, obstructing the effective realisation and implementation of constitutional guarantees.

By contrast, common law African constitutions, such as those of Nigeria, Uganda, Namibia, Kenya, and South Africa, tend to be more detailed and explicit in articulating rights. These constitutions enumerate rights and include comprehensive provisions governing their interpretation, enforcement, and permissible limitations. For instance, the Kenyan and South African constitutions provide clear guidelines on the limitation of rights, ensuring that any restriction aligns with constitutional principles and is subject to judicial oversight (Constitution of Kenya, 2010, art. 24; Constitution of South Africa, 1996, sec. 36). Such explicit constitutional provisions enhance the justiciability of rights and limit the discretion of the legislature in restricting fundamental freedoms.

Although no national or international framework mandates a specific catalogue of substantive rights that a Bill of Rights must recognise nor prescribes a uniform procedure for their recognition, the way human rights provisions are formulated in constitutions significantly impacts their protection. In African common law countries, this protection system tends to be more robust than in civil law countries, as the constitution itself clearly defines the content of rights, their exercise, and their limitations in advance.

Another key divergence arises in incorporating international law into domestic legal systems. Civil law jurisdictions in Africa predominantly adopt a monist approach, whereby international treaties, once ratified and published, acquire direct applicability within the domestic legal order (Constitution de la RDC, 2006, art. 215; Constitution du Niger, 2010, art. 171). However, these provisions typically remain silent on the status of customary international law, thereby limiting the potential for the evolution of rights protection through non-codified norms. Conversely, many African common law constitutions adopt a dualist approach, requiring legislative incorporation of international treaties before they attain domestic legal force. The South African Constitution, however, presents a hybrid model: while it follows the dualist approach to treaty law (section 231(4)), it explicitly recognises customary international law as part of domestic law unless it is inconsistent with the Constitution or an Act of Parliament (section 232). This provision expands the potential scope of human rights protection by allowing courts to invoke evolving customary international norms, reinforcing judicial authority in human rights adjudication (Constitution of South Africa, 1996, sec. 231-232).

Bill of Rights: The amendment

Unlike common law jurisdictions, civil law constitutions do not explicitly employ the term “Bill of Rights”. Instead, on the one hand, they adopt varied nomenclature to designate the section addressing fundamental rights and freedoms. On the other hand, they tend to complement the notion of rights with that of the duties of citizens. For instance, the Algerian Constitution refers to “Fundamental Rights, Public Liberties, and Duties”, while Angola employs the term “Fundamental Rights and Duties”; Benin designates it as “Rights and Duties of Individuals” and Madagascar as “Freedoms, Rights, and Duties of Citizens.” Consequently, certain fundamental rights and principles essential to the exercise of human rights may be situated outside the formal Bill of Rights framework, such as article 5 of the DRC Constitution, providing for the right to vote, is not found in Title II, which enshrines human rights.

Regarding the constitutional review of the Bill of Rights, while human rights enjoy constitutional recognition across African jurisdictions that adhere to both civil law and common law traditions, the procedures governing their amendment diverge significantly. These procedural differences, in turn, influence the enforcement and protection of constitutional rights. While the common law model prioritises procedural stringency and judicial oversight, the civil law model, despite its proclaimed safeguards, presents vulnerabilities that could potentially undermine the long-term protection of fundamental rights. A comparative analysis of the South African Constitution—a paradigmatic common law instrument—and the Constitution of the Democratic Republic of the Congo (DRC), rooted in the civil law tradition, illustrates these distinctions.

In South Africa, Section 74(2) of the Constitution stipulates that any amendment to the Bill of Rights requires a two-thirds majority in the National Assembly and the approval of at least six provinces in the National Council of Provinces. Additionally, the President must assent to such a bill, and two layers of constitutional review are available: an ex ante review by the Constitutional Court before promulgation and a substantive ex post review following enactment. This stringent amendment process enhances the stability and protection of fundamental rights.

By contrast, the DRC’s constitutional framework appears less rigid. Article 220 prohibits constitutional amendments that diminish individual rights and freedoms. However, this provision is itself subject to revision through a partial constitutional amendment, thereby creating a potential loophole. Once Article 220 is amended, the principle of irrevocability ceases to have constitutional validity, rendering all provisions susceptible to revision. This paradox exposes the DRC’s Bill of Rights to potential political manipulation. Further procedural safeguards exist under Article 218 of the DRC Constitution, which prescribes three conditions for a valid constitutional amendment: (i) approval by both the National Assembly and the Senate; (ii) ratification through a referendum unless Parliament secures a three-fifths majority vote; and (iii) presidential promulgation and official publication. Nevertheless, the relative flexibility of this amendment process raises concerns. The risk of constitutional amendments serving partisan interests rather than safeguarding fundamental rights becomes significant in a context where the ruling party or coalition controls Parliament. Moreover, the absence of an institutional mechanism for judicial review of constitutional amendments means that once an amendment meets procedural requirements, its substantive constitutionality remains unchecked.

Bill of Rights: The judicial protection

In civil and common law African jurisdictions, judicial institutions serve as the primary guardians of constitutional rights and freedoms. The comparative constitutional law literature distinguishes these systems based on the structure and authority of judicial review mechanisms. In common law systems, superior courts are empowered to assess the constitutionality of statutes as part of their general adjudicatory function. In contrast, civil law systems entrust this authority to a specialised constitutional tribunal operating outside the ordinary judicial hierarchy.

This distinction has significant implications for human rights litigation. In civil law jurisdictions, constitutional courts or councils exercise exclusive jurisdiction over matters related to the Constitution, including claims concerning fundamental rights. In contrast, common law systems vest this authority in superior courts, typically beginning with the High Court. Consequently, in African civil law countries, constitutional adjudication is centralised, whereas, in common law jurisdictions, it is diffused and decentralised across multiple judicial levels (CM Fombad “An overview of contemporary models of constitutional review in Africa” in CM Fombad (ed) Constitutional adjudication in Africa, 2017, pp. 18-25).

Another critical divergence between these systems emerges in the accessibility of constitutional litigation, particularly in public interest litigation (PIL). The South African Constitution, for example, explicitly provides for PIL, enabling individuals and organisations to challenge laws and government actions without demonstrating direct personal harm (Sections 38 and 166, Constitution of South Africa, 1996). This allows lower courts, including the High Court and the Supreme Court of Appeal, to hear human rights claims before they are potentially escalated to the Constitutional Court. In contrast, constitutional complaints regarding the Bill of Rights in the DRC can only be brought before the Constitutional Court, limiting broader access to constitutional justice (Article 162(2), Constitution of the DRC, 2006). PIL enables individuals or groups to file claims in the public interest, even without a direct personal stake in the matter. This procedural innovation is particularly vital for marginalised communities, including indigent persons, women, children, persons with disabilities, and undocumented migrants, who might otherwise face structural barriers in seeking judicial remedies. The broader scope of constitutional adjudication in common law systems thus fosters a more inclusive approach to human rights protection.

Conclusion

How human rights are recognised and enforced remains shaped by the legal tradition in place, contributing to a formal fragmentation of human rights law across the continent. Human rights protection in Africa operates within a fragmented legal architecture composed of national legal orders derived from colonial traditions, regional human rights instruments, and international legal frameworks, whose interaction lacks a coherent overarching structure. In principle, human rights are realised within domestic legal systems, resulting in as many legal interpretations and applications as there are states. This complexity is further exacerbated by the proliferation of regional and international human rights instruments and the multiplication of monitoring bodies. Despite the existence of some converging principles, the system as a whole lacks formal unity.

Addressing this fragmentation requires greater communitarisation and regionalisation of human rights enforcement. A critical step in this direction is strengthening the role of regional courts, particularly those within the regional economic communities (RECs) and the African Court on Human and Peoples’ Rights. However, the relationship between these regional judicial bodies and national constitutional courts remains ill-defined, particularly regarding human rights adjudication. Moreover, most REC courts have been largely inactive in advancing human rights protection, with the notable exception of the Economic Community of West African States (ECOWAS) Court of Justice, which has been at the forefront due to its jurisprudential activism and the distinctive mechanism it has adopted in this domain.

Furthermore, Article 3(h) of the Constitutive Act of the African Union affirms the objective of fostering international cooperation, as outlined in the United Nations Charter and the Universal Declaration of Human Rights (1948). Given that these foundational texts provide a framework for peaceful and effective inter-state cooperation, African states appear to have delegated the responsibility of coordinating human rights cooperation to the African Union itself. This reinforces the need for a continental approach to human rights enforcement built on existing regional and international legal frameworks.

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