CEU Electronic Theses and Dissertations, 2019
| Author | Gelaye, Tsega Andualem |
|---|---|
| Title | The Role and Migration of Human Dignity in African Constitutional Orders: A Comparative Study of South Africa, Kenya and Uganda |
| Summary | This thesis focuses on human dignity, which became one of the most important concepts in constitutional law in the years following the end of the Second World War. It has also attracted huge scholarly interest. Yet, two gaps are notable in the existing literature dealing with human dignity as a constitutional concept. First, with the exception of South Africa most publications on the subject have focused on western constitutional systems. As such, little or nothing is known about how human dignity is understood in African constitutional orders and its role in adjudication of fundamental rights. Second, little or no research is conducted on the actual or potential migration of the interpretation given to human dignity into African constitutional orders and its interplay with local values and traditions. Research in this area is critical because the protection and enforcement of constitutional rights is a big challenge in many African constitutional systems. Accordingly, this thesis analyzes the role and migration of human dignity in three African constitutional orders namely South Africa, Kenya and Uganda. The research is primarily based on comparative and doctrinal research methodologies to address these two gaps in the literature and answer the research questions. As such, the national constitutions of the selected countries, relevant legislation, court cases as well as relevant international and regional human rights instruments are examined. Existing scholarly articles and books relevant to the topic are also used as an input for the analysis. The finding of the research shows that human dignity is playing an important role in transforming the protection of fundamental rights in the South African and Kenyan constitutional order. Yet, in comparative terms its impact could be considered as strong in South Africa and intermediate in Kenya for a number of reasons. In contrast, human dignity seems to have a very limited role in Ugandan constitutional jurisprudence which has contributed its share for weak interpretation and state of protection constitutional rights. Further, the Constitutional Court of South Africa developed a rich human dignity jurisprudence by combining insights from history and indigenous values with progressive ideas obtained from engagement with comparative law. Both Kenyan and Ugandan courts have limitations in this regard. In order to improve this, the two jurisdictions need to learn from the experience of South Africa by adopting a human dignity centered interpretation of rights that is founded on the three core elements of human dignity i.e. respect for human life and integrity, equal worth and concern and respect for autonomy. In addition, it is also important to indigenize the ideals of dignity by relying on local cultural values like ubuntu which contributes for the greater legitimacy of their decisions and better entrenchment of fundamental rights. Furthermore, these two systems should engage with comparative law in a meaningful manner by adopting a dialogical and critical approach. The dialogue should also involve the African Commission and judicial bodies within the African human rights system which could also play their share in developing and circulating a dignity centered interpretation of rights in the continent. |
| Supervisor | Prof. Möschel, Mathias |
| Department | Legal Studies PhD |
| Full text | https://www.etd.ceu.edu/2019/gelaye_tsega.pdf |
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