OUVRAGE : T. Muhindo Makunya, Between legal tradition and transformation: Constitutional interpretation of fundamental rights by the Constitutional Courts of Benin, the Democratic Republic of Congo and South Africa

Trésor MUHINDO MAKUNYA

A rigorous and original comparative study of constitutional interpretation in Benin, the Democratic Republic of Congo and South Africa, this book explores how the Constitutional Courts of these countries shaped protection of fundamental rights across diverse legal traditions. While these jurisdictions employ similar interpretive methods, their judicial outcomes often diverge, shaped by distinct historical, political, and institutional contexts. Blending doctrinal analysis with bold normative insight, the work advocates for closer synergy between civil law and common law traditions to strengthen human rights protection in Africa.

The book transcends what might be termed ‘monological’ comparative constitutional analyses, those that limit comparisons to constitutional objects within a single legal tradition. Instead, it offers dialogical, cross-tradition insights that help scholars, practitioners, judges, and regional and international human rights bodies understand how and why similar human rights provisions may be interpreted differently, why some constitutional courts succeed or fail in their role of regulating or humanising politics, and what theoretical and practical justifi cations exist for sustained intra-African engagement aimed at enhancing the quality of human rights protection beyond inherited legal traditions.


TABLE OF CONTENTS

Preface
Acknowledgments
About the author
Acronyms and abbreviations 

PART I: COMPARATIVE FRAMEWORK

1 Legal traditions and constitutional interpretation in Africa: An introduction 

1 Introduction
2 The centrality of legal traditions in Africa
3 Relevance of constitutional interpretation

3.1 Situating the problem
3.2 Lack of clear constitutional foundation(s)
3.3 Meaning, nature and purpose
3.4 Beyond positivism in interpreting fundamental rights
3.5 Canons of constitutional interpretation

4 Contribution of the book
5 Key concepts
6 Comparative constitutional law approaches
7 Summary of the book  

2 Fundamental rights and constitutional courts in the Benin, Democratic Republic of Congo and South African Constitutions: Background and approaches 

1 Introduction
2 Historical and political background of the three countries

2.1 Authoritarianism and the violation of fundamental rights and freedoms
2.2 The failure of judiciaries to check authoritarianism

3 Recognition and protection of fundamental rights and freedoms

3.1 Scope of rights in bills of rights 
3.2 The ability of bills of rights to check arbitrary amendments
3.3 The relationship between bills of rights and international law

4 Constitutional courts’ human rights protection mandate
5 Conclusion 

PART II: INTERPRETATION OF CONSTITUTIONAL RIGHTS IN PRACTICE

3 Benin

1 Introduction
2 Methods of constitutional interpretation

2.1 General interpretive methods
2.2 Types of teleological or policy-oriented arguments

3 The role of international law norms
4 The interpretation of substantive rights 

4.1 The rights to equality and non-discrimination
4.2 Political rights 
4.3 The right to a fair trial (due process of law) 

5 Limitation of fundamental rights
6 Conclusion  

4 The Democratic Republic of Congo

1 Introduction
2 Interpretation of substantive jurisdiction and rules on admissibility

2.1 Overview of cases under discussion 
2.2 Use of teleological and extra-legal arguments to expand the Court’s substantive jurisdiction
2.3 Use of textual and formalistic arguments to restrict access to the Court
2.4 Interpretation of actions in the interest of the public

3 The interpretation of substantive rights

3.1 The rights to equality and non-discrimination 
3.2 The rights to a fair trial and due process of law 
3.3 Political rights

4 Aids to constitutional interpretation used by the Constitutional Court

4.1 International law as an aid to constitutional interpretation
4.2 The role of precedents in the Court’s interpretive practices

5 Interpretation of limitation to the Bill of Rights
6 Conclusion 

5 South Africa 

1 Introduction
2 Pressures, competition and complementarity in bill-of-rights interpretation

2.1 The multiplicity of judicial interpreters of the Bill of Rights
2.2 Nature and quality of demand for bill-of-rights interpretation

3 The Constitutional Court’s methods of interpretation

3.1 General interpretive methods
3.2 A flexible approach to international law as an aid to interpretation
3.3 Precedent-based arguments or interpretation
3.4 The place and relevance of (South) African indigenous values

4 Choice of methods of interpretation of substantive rights

4.1 The right to equality and non-discrimination
4.2 Fair trial and due process of law
4.3 Political rights

5 Interpretation of limitations of rights
6 Conclusion

PART III: COMPARATIVE TRENDS AND LESSONS

6 Promoting a human rights culture through constitutional interpretation  

1 Introduction
2 Convergences and divergences

2.1 The use of similar methods of constitutional interpretation
2.2 Categorising and explaining the meaning, content and relevance of constitutional rights
 2.3 Quality of protection of fundamental rights through constitutional interpretation
2.4 Aids to interpretation and their impact on enhancing a human rights culture

3 Factors influencing methods of constitutional interpretation

3.1 Factors related to differences between legal traditions 
3.2 Factors related to the Bill of Rights

4 Conclusion 

7 Conclusion: Enhancing the human rights culture beyond legal traditions in Africa 

1 Introduction
2 Strengthening the courts’ human rights protection mandate
3 Learning from the decentralised and centralised review models
4 Fostering value-oriented, context-sensitive approaches to access to constitutional jurisdictions
5 Liberalising constitutional courts’ approaches to international law
6 Fostering cross-systemic legal education in Africa
7 Reconceptualising the role of continental judicial engagements
8 Conclusion 

Bibliography
List of instruments

 Trésor MUHINDO MAKUNYA, Between legal tradition and transformation: Constitutional interpretation of fundamental rights by the Constitutional Courts of Benin, the Democratic Republic of Congo and South Africa, Pretoria, PULP, 2026 (401 pp.)