Interpretation and Constitutions in Africa: A Focused Inquiry into Comparative Constitutional Interpretation in Ghana and Nigeria

Abstract

After military rule in Ghana and Nigeria, the decision was taken to return the countries to constitutional democracy. The constitutions that were promulgated in fulfilment of this objective, one may say, sought to embody or represent the 'spirit' of the people as reflected in their respective political and constitutional experiences. It would therefore be reasonable that the courts interpret these in a manner that best reflects the supreme interests of the people. But there are various theories of constitutional interpretation such as the positivist, purposive, ethical, originalist, non-originalist, literalist and mechanical brands of interpretation. Admittedly and as a matter of principle, there are good reasons for a panel of judges to follow one or more of these styles in interpreting a constitution. But the choice should not be made arbitrarily. The political as well as the constitutional experiences of the people should be the basic denominator for any preferred theory of constitutional interpretation for a country. This article attempts a discourse on the positivist and non-positivist tacks of interpreting a constitution, especially by the courts in Ghana and Nigeria. Primarily, it takes the position that judicial attempts in these two countries to conceive the constitution as 'law' are better appreciated if a non-positivist style of constitutional interpretation is adopted. Transiting from military dictatorship and its attendant violation of human rights, and the problem of exclusion in the constitution making process in these two countries, it is palpably dangerous to rely on the literal interpretation of the Constitution.