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Published online by Cambridge University Press: 03 November 2016
This article proposes an alternative to more standard, neoclassical theories concerned with the proceduralisation of constituent power. It argues that more established theories of proceduralisation are insufficiently aligned to the sociological realities in which constituent power is located and expressed, and their residual fixation on the premises of classical constitutionalism impedes adequate understanding of constituent power in the global constitutional order of contemporary society. On this basis, the article offers a sociological examination of constituent power, which attempts to grasp constituent power in its objectively existing procedural form. In particular, it claims that constituent power now exists as an inner-legal function, activated through procedures within an increasingly differentiated legal system: whereas in classical theory constituent power was a primary political source of constitutional norms, it now appears only as a secondary expression of norms already contained within the global legal system. Rather than renouncing the idea of constituent power, however, the article uses its sociological focus to observe new procedural openings for the activation of constituent agency, adapted to the material/sociological fabric of contemporary society.
Research for this article was funded by the European Research Council (Advanced Grant: 323656-STC). I wish to thank my co-researchers Maria Smirnova, Rodrigo Cespedes, Elizabeth O’Loughlin and Carina Calabria for their great assistance in the research required for this article.
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2 For example, Grimm argues that the ‘distinction between pouvoir constituant and pouvoir constitué’ is ‘constitutive’ of modern constitutionalism. See Grimm, D, Die Zukunft der Verfassung II: Auswirkungen von Europäisierung und Globalisierung (Suhrkamp, Frankfurt am Main, 2012) 223Google Scholar. See also the claims in Loughlin, M, ‘The Concept of Constituent Power’ (2014) 13(2) European Journal of Political Theory 218Google Scholar. Loughlin argues elsewhere that ‘collective self-representation’ is ‘at the core of the constitutional imagination’. See Loughlin, M, ‘The Constitutional Imagination’ (2015) 78(1) Modern Law Review 11Google Scholar.
3 Classical ideas of constituent power are of course reflected in the works of Sieyès in the French Revolution. But the classical notion of the constituent power as producing a reflected ‘compact for civil government in any community’, stipulating subsequently binding ‘rules of government’, was most clearly formulated in the America Revolution. See D Shute, ‘An Election Sermon’ in American Writing during the Founding Era 1760–1805, edited in two vols by CS Hyneman and DS Lutz (Liberty Fund, Indianapolis, IN, 1983 [1768]) vol I, 109, 117.
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26 Consensus is of course a scarce phenomenon in Luhmann’s thought. He denied, programmatically, that society could be founded in modes of rationality able to establish ‘consensus, or even truth’ as a fixed basis for social exchange. See Luhmann, N, ‘Soziologische Aufklärung’ (1967) 18(2/3) Soziale Welt 98Google Scholar. However, he also claimed that the proceduralisation of legal roles allows collective learning about probable legal outcomes, and it institutionalises consensual expectations about legal obligations. See (n 14) 34.
27 The International Court of Justice (ICJ) had come close to recognising a doctrine of jus cogens by 1951. See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Advisory Opinion, 1951. By 1971, the ICJ described any breach of human rights norms by states as a flagrant violation of the purposes and principles of the Charter of the United Nations: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Advisory Opinion, 1971.
28 Although much contested in the wake of 1945, this principle was acknowledged in the war-crimes trials in Germany and Japan in 1946. It was formally established in art 2 of the ICCPR (1966).
29 Klabbers, J, Peters, A and Ulfstein, G, The Constitutionalization of International Law (Oxford University Press, Oxford, 2009) 154, 179Google Scholar; A Peters, Jenseits der Menschenrechte. Die Rechtsstellung des Individuums im Völkerrecht (Mohr Siebeck, Tübingen, 2014) 15, 341.
30 Classically, Sieyès argued that, as constituent power, the people is ‘freed from all constraint’, and the constitutional form that it chooses to confer upon itself becomes binding, as higher law, on all subsequent legislation. Sieyès, E-J, Qu’est-ce que le tiers-état? (Pagnerre, Paris, 1839 [1789]) 20Google Scholar.
31 See Schmitt’s claim that in exercising the constituent power ‘the nation remains the original ground [Urgrund] of all political occurrences’. See (n 23) 7.9.
32 See (n 4) 86–7.
33 This can be seen at every level of the global legal system. The main international human rights instruments taking effect in the decades after 1945 began to construct individuals as holders of rights in relation to the states to whose jurisdiction they were subject, so that rights could be claimed by individuals against different branches of their own states. The principle of general singular rights holding was then articulated more clearly in later UN documents: notably, in art 2 of the ICCPR, in art 5 of the Convention on the Elimination of All Forms of Racial Discrimination (1965). The principle of individual rights was still more emphatic in regional human rights instruments, obtaining early importance under the ECHR, art 1 of which allowed individual petition to the European Commission on Human Rights. In Lawless (1961), the principle was established that the Commission had standing analogous to that of sovereign states, thus facilitating individual access to the ECtHR. The consolidation of singular rights was then reinforced through a series of important cases heard by the ECtHR in the 1970s. This principle was also enshrined in domestic constitutions – first, in the post-authoritarian constitutions created after 1945, and, later, in the globalisation of democracy beginning in the mid-1980s in Latin America. In each instance, the single person was placed at the centre of legal order, and the single person, claiming subjective rights, linked the domestic legal system to the national legal system: rights claimed by the single person in national law were broadly the same as those supported in international law, and rights denied domestically could usually, at least in principle, be pursued internationally.
34 Contra Luhmann, who argued that it is impossible for any social system to obtain primacy, my view is that in global society, the legal system has become the dominant system.
35 The emergence of international law as a specific legal system can be traced to the immediate aftermath of the war, although it only became an evolved reality at a much later stage. From the late 1940s, the ICJ began to define individual persons as having rights under an international legal system. Eventually, this became an important principle in ICJ jurisprudence (see ICJ case LaGrand (Germany) v United States of America (2001)). Powers of states were relativised by the fact that other subjects could claim international legal personality, including the UN itself. See DJ Bederman, ‘The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel’ (1995) 36 Virginia Journal of International Law 275. The power of international courts to intervene directly in domestic politics was initially low, although, in the context of decolonisation, they could influence the constitutional design of new polities. By the 1980s, regional human rights courts routinely struck down domestic laws.
36 See (n 27) above.
37 The new democracies created after 1945 in Western Germany and Italy obtained powerful constitutional courts, backed by their role in protecting international defined human rights. In both cases, courts used international norms to block acts of other branches of government. This constitutional dimension became increasingly strong in new democracies, and in the democratic transitions beginning in the late 1980s, judicial bodies often used international law to invalidate domestic laws.
38 Nollkaemper, A, ‘The Internationalized Rule of Law’ (2009) 1(1) Hague Journal on the Rule of Law 75.Google Scholar
39 On China in this regard, see Pei, M, ‘Citizens v. Mandarins: Administrative Litigation in China’ (1997) 152 The China Quarterly 832Google Scholar; Peerenboom, R, ‘Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and the Rule of Law in the People’s Republic of China’ (2001) 19(2) Berkeley Journal of International Law 161Google Scholar.
40 See classical and near-classical views of this process in Jessup, P, Transnational Law (Yale University Press, New Haven, CT, 1956) 136Google Scholar; Jackson, VC, Constitutional Engagement in a Transnational Era (Oxford University Press, Oxford, 2010) 272Google Scholar; Weiler, J, The Constitution of Europe (Cambridge University Press, Cambridge, 1999) 194, 196Google Scholar; A-M Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191.
41 This collaboration is partly reflected in immediate interaction between national and international courts. But it is also reflected in the doctrines of the margin of appreciation and proportionality, included in major international human rights instruments, which promote fluid linkage between the two tiers of the global legal system.
42 M Albert, Politik der Weltgesellschaft: Identität und Recht im Kontext internationaler Vergesellschaftung (Velbrück, Veilerszwist, 2002) 274.
43 See Dann, P and Al-Ali, Z, ‘The Internationalized Pouvoir Constituant – Constitution-Making under External Influence in Iraq, Sudan and East Timor’ (2006) 10 Max Planck Yearbook of United Nations Law 423Google Scholar; Chesterman, S, You, the People: The United Nations, Transitional Administration, and State-Building (Oxford University Press, Oxford, 2004) 75, 140–1Google Scholar.
44 This can be seen in many contexts. But, as a rather extreme example, we can observe the Concept of Judicial Reform, introduced in Russia by President Yeltsin in 1991. This document stated that the aim of the new state was to ‘return into the world civilization, which requires legal reforms in order to turn from a political state into a rule of law state’. According to this Concept, judicial reform had to be seen as the ‘nucleus of legal transformation of the country’. Importantly, the Concept recognised international law as an important source of law, regardless of whether it had been formally incorporated in the domestic legal system, and it prescribed to the courts the ‘universally recognized principles’ (see Supreme Council of RSFSR Decision No 1801–1 of 24 October 1991 ‘On the Concept of Judicial Reform in RSFSR’ [O Kontseptsii sudebnoy reformy v RSFSR], Vedomosti SND i VS RSFSR 44, 31 October 1991, item 1435).
45 For discussion of Kenya, see below at pp 34–6. In South Africa in the early to mid-1990s, the constitutional transition was presided over by a very powerful Constitutional Court. Supported by reference to norms of international law, the court was able to review and in some cases to clear away legislation from the apartheid era, to stimulate trust in the emerging institutions of government, and generally to distil a new normative foundation to insulate the emergent political system against extreme external contestation. See Dickson, B, ‘Protecting Human Rights through a Constitutional Court: The Case of South Africa’ (1997) 66 Fordham Law Review 566.Google Scholar
46 On the UK in this respect, see Hiebert, JL, ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69(1) Modern Law Review 7.Google Scholar
47 Gross, AM, ‘The Constitution, Reconciliation, and Transitional Justice: Lessons from South Africa and Israel’ (2004) 40 Stanford Journal of International Law 47Google Scholar.
48 In Kenya, importantly, public interest litigation became a vehicle for asserting rights of protection for ethnic groups in a number of cases, both in national courts and in the African Commission on Human Rights. An important recent example of a case in the African Commission regarding minority community rights against Kenya is the Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (decided 2009). Importantly, although the petition in question was itself unsuccessful, the Kenyan High Court at Nairobi has ruled that land claims can have constitutional significance, thus creating a legal opening for such claims to shape public law. See Ledidi Ole Tauta & Others v Attorney General & 2 others [2015] eKLR.
49 For a general cross-section of the global-constitutionalist literature, see Fassbender, B, ‘The United Nations Charter as Constitution of the International Community’ (1998) 36(3) Columbia Journal of Transnational Law 529Google Scholar; Dupuy, P-M, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’ (1997) 1 Max Planck Yearbook of United Nations Law 1Google Scholar; Henkin, L, ‘Human Rights and State “Sovereignty”’ (1996) 25 Georgia Journal of International and Comparative Law 39Google Scholar; Kadelbach, S and Kleinlein, T, ‘International law – A Constitution for Mankind? An Attempt at a Re-appraisal with an Analysis of Constitutional Principles’ (2007) 50 German Yearbook of International Law 303Google Scholar; Peters, A, ‘Global Constitutionalism in a Nutshell’ in Dicke, K et al. (eds), Weltinnenrecht: Liber amicorum Jost Delbrück (Duncker & Humblot, Berlin, 2005) 535Google Scholar. For an overview, see ch 1 in Schwöbel, CEJ, Global Constitutionalism in International Legal Perspective (Martinus Nijhoff, Leiden, 2011).Google Scholar
50 Most importantly, arts 53 and 64, the Vienna Convention on the Law of Treaties indicated that all treaty law is bound by certain human rights norms, and treaties not reflecting such law should not be recognised as valid.
51 To some degree, the importance of human rights in international law after 1945 created a distinct systemic foundation on which it became possible for judicial bodies to elaborate international law through constructive acts of interpretation. It is noted that the framers of the UN Charter did not remotely envision that it would become the basis for a ‘vast and multifarious corpus juris’. See Schachter, O, ‘The UN Legal Order: An Overview’ in Schachter, O and Joyner, CC (eds), United Nations Legal Order, in two vols (Cambridge University Press, Cambridge, 1995)Google Scholar I, 2 The fact that it did so was the result of an ongoing judicial elaboration of its primary principles, in which many different courts participated, and in which human rights law played a guiding role. Some international courts have openly defined themselves as interpreters of an ‘existing international corpus juris’. See as a leading example: IACtHR, Yakye Axa Indigenous Community v Paraguay (17 June 2005) 84.
52 See Reparation for Injuries suffered in the Service of the United Nations, ICJ Advisory Opinion, 1949.
53 See Administrative Tribunal of the International Labour Organization, Waghorn v ILO (1957). For comment see Reinisch, A, ‘The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals’ (2008) 7(2) Chinese Journal of International Law 285Google Scholar.
54 Trachtman, JP, ‘The Constitutions of the WTO’ (2006) 17(3) European Journal of International Law 623.Google Scholar
55 For select analysis see Stein, E, ‘Lawyers, Judges and the Making of a Transnational Constitution’ (1981) 75(1) American Journal of International Law 1Google Scholar; Claes, M, ‘Europeanisation of National Constitutions in the Constititionalisation of Europe: Some Observations against the Background of the Constitutional Experience of the EU-15’ (2007) 3 Croatian Yearbook of European Law and Policy 1Google Scholar; Stone Sweet, A, The Judicial Construction of Europe (Oxford University Press, Oxford, 2004)Google Scholar.
56 Teubner, G, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford University Press, Oxford, 2012) 74–5.Google Scholar
57 This line of jurisprudence began to gain impact in West Germany, as a means to extend basic constitutional rights to the private sphere. See West German Constitutional Court, 35 BVerfGE 202 (1973) [Lebach]. Ultimately, this jurisprudence acted, in a number of polities, to imprint a deep constitutional grammar on the private sphere, generating multiple new rights. See for important examples Chilean Court of Appeal, Rol 2.563-92 P (17 November 1992); Argentine Supreme Court 9080 (25 August 2009).
58 Barak, A, Proportionality: Constitutional Limits and their Limitations (Cambridge University Press, Cambridge, 2012) 135.Google Scholar
59 Cohen-Eliya, M and Porat, I, Proportionality and Constitutional Culture (Cambridge University Press, Cambridge, 2013) 135.Google Scholar
60 For the claim that judicial review on proportionality grounds is ‘inescapably an exercise in applied lawmaking’ see Stone Sweet, A and Matthews, J, ‘Proportionality and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 161Google Scholar.
61 UK judges have openly ascribed to themselves the duty to make a ‘sociological assessment’ of the impact of administrative acts and to ensure accordance of such acts with higher rights norms. See Wilson v First County Trust Ltd [2003] UKHL 40 142 (Hobhouse LJ). UK judges have also, rather unconvincingly, tried to claim, as follows, that proportionality does not involve a constitutional shift to merits review: ‘In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. That does not mean that there has been a shift to merits review’. This view is expressed in Huang and others v The Secretary of State for The Home Department [2005] EWCA Civ 105 (Laws LJ).
62 See (n 58) 127.
63 See the recent ECJ cases: Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert (9 November 2010).
64 Luhmann, of course, denies the possibility of direct communication between politics and law. However, he viewed the institutionalisation of procedures in the political system as a means by which the political system could learn ‘society as its immediate environment’. See (n 14) 237.
65 Naturally, Luhmann argued that the political system could not be accorded any primacy in a differentiated society. See Luhmann, N, Politische Theorie im Wohlfahrtsstaat (Olzog, Vienna, 1981) 23Google Scholar. Yet, this theory still centres society around a normative compatibility between politics and law.
66 See Loughlin’s views at (n 2) above.
67 This is most notably the case in Habermas’s idea of the legitimate state as one created through ‘the gradually improved institutionalization of procedures of rational collective will formation’. See Habermas, , Faktizität und Geltung (n 8) 629Google Scholar.
68 For debate on the international dimensions of this see Patberg, M, ‘Constituent Power beyond the State: An Emerging Debate in International Political Theory’ (2015) 42(1) Millennium: Journal of International Studies 1Google Scholar.
69 Dugas, JC, ‘The Origin, Impact and Demise of the 1989–1990 Colombian Student Movement: Insights from Social Movement Theory’ (2001) 33(4) Journal of Latin American Studies 809Google Scholar.
70 Rivera Santiváñez, JA, ‘La evolución político-institucional en Bolivia entre 1975 a 2005’ (2008) 6(2) Estudios constitucionales 204Google Scholar.
71 The Bolivian Constitution (art 196) declares that the will of the constituent power has to be recognised as the highest interpretive criterion for all law. Bolivian judges have openly advocated a strong doctrine of constituent power (Bolivian Constitutional Court 0168/2010-R, at 14). Many articles of the Venezuelan constitution of 1999 (especially arts 6, 62, 70, 168, 182 and 184) are intended to incorporate an incessantly active constituent power in the state. Art 96 of the 2008 constitution of Ecuador also recognises the exercise of a live constituent power.
72 The Preamble to the Bolivian Constitution declares as follows: ‘We have left the colonial, republican and neo-liberal State in the past. We take on the historic challenge of collectively constructing a Unified Social State of Pluri-National Communitarian law, which includes and articulates the goal of advancing toward a democratic, productive, peace-loving and peaceful Bolivia, committed to the full development and free determination of the peoples.’
73 Alcalá, HN, ‘Consideraciones sobre poder constituyente y reforma de la Constitución en la teoría y la práctica constitucional’ (2009) 15(1) Ius et Praxis 229Google Scholar.
74 Hammond, J, ‘Indigenous Community Justice in the Bolivian Constitution of 2009’ (2011) 33(3) Human Rights Quarterly 649.Google Scholar
75 Since 1991, the Colombian Constitutional Court has consolidated a core of the block of constitutionality, which has been used to declare that some international norms, especially human rights provisions, have distinctively high standing in domestic constitutional law. See in particular Colombian Constitutional Court C-225/95.
76 See Colombian Constitutional Court C-280/13.
77 See as general accounts of this in Sikkink, K, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (Norton & Co, New York, NY, 2011)Google Scholar; Simmons, BA, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge University Press, New York, NY, 2009)Google Scholar; El-Ghobashy, M, ‘Constitutionalist Contention in Contemporary Egypt’ (2008) 51 American Behavioral Scientist 1590Google Scholar.
78 Smith and Grady v UK (1999) 29 EHRR 493.
79 See R v Secretary of State for the Home Department, ex parte Daly [2001] All ER (D) 280 (May) (Steyn LJ).
80 Doe v Unocal, 395 F.3d 932 (9th Cir 2002).
81 See Lubbe v Cape Plc [2000] UKHL 41 in the UK; Canada (Justice) v Khadr [2008] 2 SCR 125, 2008 SCC 28 in Canada. See also Familia Pacheco Tineo v Estado Plurinacional de Bolivia (2013) in the IACtHR. As a core case in this line of reasoning, see Italian Constitutional Court (238/2014).
82 Stephens, B, ‘The Curious History of the Alien Tort Statute’ (2014) 89(4) Notre Dame Law Review 1518.Google Scholar
83 The recent worldwide proliferation of proportionality began with Lüth (1958) and the Apotheken-Urteil (1958) in Western Germany. Proportionality is now acknowledged as having ‘unlimited’ effect in German private law. See Diederichsen, U, ‘Das Bundesverfassungsgericht als oberstes Zivilgericht – ein Lehrstück der juristischen Merthodenlehre’ (1998) 198(2/3) Archiv für civilistische Praxis 254Google Scholar.
84 Classical legal procedures for controlling administrative acts were widely observed as ‘the application of the state’s law … to the state itself’ in Cotterrell, R, ‘Judicial Review and Legal Theory’ in Richardson, G and Genn, H (eds), Administrative Law and Government Action: The Courts and Alternative Mechanisms of Review (Clarendon Press, Oxford, 1994) 26Google Scholar.
85 In common-law settings this reflects a widely diagnosed ‘righting’ of administrative law, which has led to the more rigid binding of public bodies by norms of international extraction. See on this Taggart, M, ‘Proportionality, Deference, Wednesbury’ (2008) New Zealand Law Review 432–3Google Scholar; Dyzenhaus, D, ‘The Rule of (Administrative) Law in International Law’ (2005) 68(3/4) Law and Contemporary Problems 140Google Scholar.
86 This is a very common phenomenon in Russian law. For recent examples see Constitutional Court of the Russian Federation, Analytical Report on the Implementation of Decisions of the Constitutional Court of the Russian Federation, Adopted in the Course of Constitutional Proceedings in 2014 [Informatsionno-analiticheskiy otchet ob ispolnenii resheniy Konstitutsionnogo Suda Rossiyskoy Federatsii, prinyatykh v khode osushchestvleniya konstitutsionnogo sudoproizvodstva v 2014 godu]. [Online] 15 April 2015. Available (in Russian) at <http://www.ksrf.ru/ru/Info/Maintenance/Informationks/Pages/ReportKS2014.aspx>, accessed 24 November 2015.
87 See for example the Russian Administrative Litigation Code (2015), which is designed to facilitate litigation against government bodies and to simplify procedures for public interest litigation. The 2015 Code was anticipated in one of Putin’s post-election memoranda (2012), in which he outlined his priorities for the development of the judicial system, based on harmonisation of public services standards with international norms through the use of best practices of other countries in state-building processes.
88 See Gidi, A, ‘Class Actions in Brazil: A Model for Civil Law Countries’ (2003) 51(2) American Journal of Comparative Law 332Google Scholar.
89 This distinction is now quite emphatically declared in Colombia and Bolivia, where public interest litigation is seen as focused on rights that pertain to persons, not as members of a legal group or class, but simply as members of the nation. See discussion below at p 32.
90 Yeazell, SC, ‘Brown, the Civil Rights Movement and the Silent Litigation Revolution’ (2004) 57(6) Vanderbilt Law Review 1976Google Scholar; Klarman, MJ, From Jim Crow to Civil Rights. The Supreme Court and the Struggle for Racial Equality (Oxford University Press, Oxford, 2004) 344–442Google Scholar.
91 Dudziac, MJ, ‘Desegregation as a Cold War Imperative’ (1988) 41(1) Stanford Law Review 94.Google Scholar
92 The cases discussed below occurred in common-law settings, and they saw a liberalisation of standing rules partly because this permitted a shift away from English metropolitan law, towards a more decidedly post colonial constitution. English laws on standing were traditionally very restrictive, as expressed in the following: ‘a private person could only bring an action to restrain a threatened breach of the law if his claim was based on an allegation that the threatened breach would constitute an infringement of his private rights or would inflict special damage on him.’ Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70.
93 In India, the basic structure doctrine, asserting the absolute entrenchment of certain elements of the constitution, was partly worked out through reference to international human rights law. See arguments in Kesavananda Bharati v State of Kerela (1973) 4 SCC 225.
94 S.P. Gupta vs President of India and Ors on 30 December 1981 (Bhagwati J).
95 See the Tanzanian case Christopher Mtikila v Attorney General, Civ Case No 5 of 1993 (High Court, Dodoma, 1993). Here the argument runs as follows: ‘The relevance of public interest litigation in Tanzania cannot be overemphasised. Having regard to our socio-economic conditions, this development promises more hope to our people than any other strategy currently in place. First of all, illiteracy is still rampant … Secondly, Tanzanians are massively poor. Our ranking in the world on the basis of per capita income has persistently been the source of embarrassment. Public interest litigation is a sophisticated mechanism which requires professional handling. By reason of limited resources the vast majority of our people cannot afford to engage lawyers even where they were aware of the infringement of their rights and the perversion of the Constitution. Other factors could be listed but perhaps the most painful of all is that over the years since independence Tanzanians have developed a culture of apathy and silence. This, in large measure, is a product of institutionalised mono-party politics which in its repressive dimension, like detention without trial, supped up initiative and guts.’ My thanks are due to Elizabeth O’Loughlin (PhD researcher, University of Manchester) for drawing my attention to this case.
96 Londoño Toro, B, ‘Las acciones colectivas en defensa de los derechos de tercera generación’ (1999) 1(2) Revista Estudios Socio-Juridicos 103.Google Scholar
97 Colombian Constitutional Court C-215/99.
98 Colombian Constitutional Court T-528/1992.
99 Colombian Constitutional Court T-254/1993.
100 Bolivian Constitutional Court 1018/2011-R.
101 See Colombian Constitutional Court C-215/99; Bolivian Constitutional Court 0572–2014.
102 Close to this view, see the account of public interest litigation as a source of ‘destabilization rights’ in Sabel, CF and Simon, WH, ‘Destabilization Rights: How Public Law Litigation Succeeds’ (2004) 117 Harvard Law Review 1020Google Scholar.
103 See the following comment: ‘PIL cases must be based on constitutional claims and can be brought only against the government, not private parties. Unlike traditional litigation, PIL has looser procedural requirements, particularly in regard to legal standing. Furthermore, in a PIL case there is no trial; the governmental respondents are expected to cooperate with the petitioners, rather than act as opponents; objective third parties, such as amici curiae and expert committees, are often involved in the litigation; and the Court plays a particularly active role in directing the proceedings and monitoring the implementation of its orders.’ Sood, AM, Litigating Reproductive Rights: Using Public Interest Litigation and International Law to Promote Gender Justice in India (Center for Reproductive Rights, New York, NY, 2006) 24Google Scholar.
104 See for example Indian cases above at p 31. However, public interest litigation has also been used to secure new rights regarding environmental protection and rights of recognition for sexual minorities. In Kenya, notably, public interest litigation has widely focused on environmental rights Sang, BYK, ‘Tending towards Greater Eco-Protection in Kenya: Public Interest Environmental Litigation and Its Prospects within the New Constitutional Order’ (2013) 57(1) Journal of African Law 40Google Scholar.
105 See Bolivian Constitutional Court 0572/2014. See extensive discussion of this in Bellido, MEA, Sistematización de jurisprudencia y esquema jurisprudencial en los pueblos indígenas en el marco del sistema plural de control de constitucionalidad (Fundación CONSTRUIR, La Paz, 2014) 210–11.Google Scholar
106 Njoya and Others v Attorney-General and Others (2004) AHRLR 157 (KeHC 2004).
107 For a long time, Okunda v Republic [1970] EA 453, in which international law was ruled subordinate to domestic law, remained a leading case regarding the status of international law. This approach was sustained in later leading cases, notably in Rono v Rono (29 April 2005), Civil Appeal No 66 of 2002, [2008] 1 KLR 803. However, this position changed gradually in the course of the transition. For example, in In Re Estate of Lerionka Ole Ntutu (Deceased) [2008] eKLR, the Kenyan High Court announced that it would adopt a more purposive ‘living tree’ approach to constitutional interpretation, citing international covenants to overrule customary law. The line of reasoning in Rono v Rono was abandoned in later cases, in particular in Satrose Ayuma and others v The Registered Trustees of the Kenya Railway Staff Benefits Scheme and others (High Court petition No 65 of 2010), where the Justices ruled that the principle stated in Rono v Rono was not ‘good law’. Note though that before 2010 some rulings had already given particular weight to international law. An important example is In Re the Estate of Andrew Manunzyu Musyoka (Deceased) [2005] eKLR.
108 Kenya Law Reports [2004] 1 KLR 237. On the importance of international law in this case see Mbote, PK and Akech, M, Kenya: Justice Sector and the Rule of Law (Open Society Initiative for Eastern Africa, Johannesburg, 2011) 39Google Scholar.
109 Kenya Law Reports [2004] 1 KLR 238.
110 Kenya Law Reports [2004] 1 KLR 239.
111 Yet, for an important model of acentric inner-legal law production, see Ladeur, K-H, ‘Subjektive Rechte und Theorie der Prozeduralisierung: Vom Universalismus des Rechts zur rechtlichen Modellbildung unter Ungewißheitsbedingungen’ (1994) 27(1) Kritische Justiz 56Google Scholar.