Tesi etd-09182025-102657
Link copiato negli appunti
Tipo di tesi
Corso di Dottorato (D.M.226/2021)
Autore
OIRA, NICKSON
Indirizzo email
oiranick@yahoo.com
URN
etd-09182025-102657
Titolo
The African Quest for a Constitution’s Basic Structure: Securing Constitutional Core Legitimacy.
Settore scientifico disciplinare
IUS/08
Corso di studi
Istituto di Diritto, Politica e Sviluppo - Ph.D. in Diritto
Commissione
relatore OIRA MAYIEKA NICKSON
Membro Prof.ssa ANGIOLETTA SPERTI
Membro Prof. RICHARD ALBERT
Membro Prof.ssa ANGIOLETTA SPERTI
Membro Prof. RICHARD ALBERT
Parole chiave
- Constitutional Replacement
- Derivative Constituent Power
- Constitution's Basic Structure.
Data inizio appello
17/12/2025;
Disponibilità
completa
Riassunto analitico
Radical constitutional changes lacking the participation of the people purporting to be constitutional amendments have continued to characterize constitutional changes within polities. Radical constitutional changes disguised as amendments have been reformative, altering the constitution to look completely different from how it was before, raising question on the capacity of amendment power to replace the constitution. With majority of polities lacking constitution replacement or constitutional reformative procedures within their constitutions, the courts have stepped in to assert the lack of a proper procedure which encapsulates the participation of the people or the sovereign in these reformative changes and therefore struck down these constitutional replacements. Courts have asserted the lack of participation of the sovereign in these reformative changes and therefore declared such constitutional replacements unamendable, moved to author what would constitute these constitutional replacements, and shielded these reformative constitutional provisions within the Basic Structure Doctrine. Even with the court’s intervention to declare these reformative constitutional changes unamendable, this has not stopped efforts within different jurisdictions to reform their constitutions, demonstrating a continuous desire by polities to shape their constitutional document to reflect the changing needs of society. Therefore, a constitutional design to frame constitutional replacement provisions through the derivative constituent power allowing communities to author what constitutes constitutional replacement provisions without breaking legal continuity, and taking away nullification and authorship roles from the courts is timely.
Framing the constitution’s basic structure requires the use of the derivative constituent power which incorporates community participatory process culminating in an informed referendum vote, this procedure is similar to that required to reform or replace the constitution. Therefore, the procedure of framing the constitution’s basic structure could also serve the purpose of allowing communities or reformers to transform or replace the constitution legitimately.
The thesis adopts a comparative approach, drawing from the judicial decisions of the Keyan and Ugandan apex courts where both reach a finding that the Indian Basic Structure doesn’t apply within their jurisdiction, Justices draw our attention to entrenched provisions within their respective constitutions as constituting the constitution’s basic structure. Justices underscore the distinction between the Indian Basic Structure Doctrine and the Constitution’s Basic Structure. Depicting from the decision of the two apex courts and scholarly work which is highlighted in Chapter two and Chapter five, the dissertation formulates tripartite paths of formulating the constitution’s basic structure, a) constitution’s basic structure could be framed during constitution-making where communities through the original constituent power which operates outside the constitution, is limitless, unbound, and free, frame what constitutes their constitution’s basic structure, b) constitution’s basic structure could also be formulated within the life of the constitution- without breaking legal continuity through the derivative constituent power which calls on community deliberative process culminating in an informed approval in a referendum process. The derivative constituent power draws its power from the existing constitution and its inclusion of participatory process makes it more powerful than the normal amendment power of constituted organs but less powerful than the original constituent power and therefore cannot engage in constitution-making, c) constitution’s basic structure could also be framed through the courts, this is the current position where judges author what constitutes the constitution’s basic structure on a case by case basis. However, this third path should only be used as a default option because as a constituted organ sharing the same limited constituted power as Parliament and other constituted bodies, the courts’ current authority to frame what constitutes the constitution’s basic structure without involving the people is untenable because of legitimacy deficit.
Framing the constitution’s basic structure requires the use of the derivative constituent power which incorporates community participatory process culminating in an informed referendum vote, this procedure is similar to that required to reform or replace the constitution. Therefore, the procedure of framing the constitution’s basic structure could also serve the purpose of allowing communities or reformers to transform or replace the constitution legitimately.
The thesis adopts a comparative approach, drawing from the judicial decisions of the Keyan and Ugandan apex courts where both reach a finding that the Indian Basic Structure doesn’t apply within their jurisdiction, Justices draw our attention to entrenched provisions within their respective constitutions as constituting the constitution’s basic structure. Justices underscore the distinction between the Indian Basic Structure Doctrine and the Constitution’s Basic Structure. Depicting from the decision of the two apex courts and scholarly work which is highlighted in Chapter two and Chapter five, the dissertation formulates tripartite paths of formulating the constitution’s basic structure, a) constitution’s basic structure could be framed during constitution-making where communities through the original constituent power which operates outside the constitution, is limitless, unbound, and free, frame what constitutes their constitution’s basic structure, b) constitution’s basic structure could also be formulated within the life of the constitution- without breaking legal continuity through the derivative constituent power which calls on community deliberative process culminating in an informed approval in a referendum process. The derivative constituent power draws its power from the existing constitution and its inclusion of participatory process makes it more powerful than the normal amendment power of constituted organs but less powerful than the original constituent power and therefore cannot engage in constitution-making, c) constitution’s basic structure could also be framed through the courts, this is the current position where judges author what constitutes the constitution’s basic structure on a case by case basis. However, this third path should only be used as a default option because as a constituted organ sharing the same limited constituted power as Parliament and other constituted bodies, the courts’ current authority to frame what constitutes the constitution’s basic structure without involving the people is untenable because of legitimacy deficit.
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