Constitutional courts

: reconciling the law, politics, and 'spirit' after transition

Abstract

This thesis investigates judicial constitutional interpretation and decision-making following transitions from non-democratic minority rule to majority-led liberal democracies in two former white-settler colonial states. The research responds to the uneven engagement with constitutionalism in Africa. In particular, the limited attention paid to the impact of post-colonial legacies on emergent constitutional courts in post-colonial Africa. Focusing on Zimbabwe and South Africa, the central research question asks: To what extent does the ‘spirit’ of national liberation movements manifest in early constitutional adjudication? In doing so, the thesis aims to: first, foreground post-colonial Southern Africa in a comparative constitutional study exercise; second, challenge the privileging of the South African post-apartheid constitutional development in legal and political scholarship; and third, recognising the comparative paucity of focused study on it, offer new data on Zimbabwe’s post-transitional constitutional development.

Adopting a methodological approach that synthesises perspectives from history, politics, and comparative constitutional law, I examine eight cases to investigate the manifestation of the ‘spirit’ of the national liberation movements in the Supreme Court of Zimbabwe between 1980 and 1995, and in the Constitutional Court of South Africa between 1995 and 2000. Highlighting the nature of the preceding peace settlement processes, orientation of the liberation constitutions, and post-transition political dynamics, this thesis rationalises the restrained, legalistic approach of the Supreme Court against the more deliberative, empowered, and transformative arc of the Constitutional Court of South Africa. The findings of this study demonstrate that a historically grounded analysis of post-transitional constitutional adjudication in African courts, which recognises and considers the specificities of preceding national liberation struggles, helps better account for the ideological, temporal, and moral dimensions of constitutional decision-making in their formative years.

Date of Award	2 Dec 2025
Original language	English
Awarding Institution	University of St Andrews
Supervisor	Anthony F Lang Jr (Supervisor) & Mateja Peter (Supervisor)