The organic laws in francophone Africa and the judicial branch: a contextual analysis
Organic, qualified, or institutional laws are a special category of statutes that have a constitutional mandate to protect institutional frameworks and fundamental rights and freedoms. They operate using stricter procedural mechanisms than those available under ordinary legislative processes as they are usually passed by a supermajority. The three main models of organic laws are the French, Spanish, and Hungarian. There is arguably a fourth African model that is yet to crystallise as it is still in flux and ever-changing. Each of these models espouses unique constitutional, legal, and historical characteristics that set it apart from the other. Due to its origin, organic laws are more common in civil rather than common-law countries. Organic laws are vested with certain constitutional, political, and historical functions. For example, they are used to protect institutional frameworks and fundamental rights and freedoms. In Spain, organic laws form part of the Spanish Constitution and are only invoked during times of constitutional reviews of ordinary laws. In Africa, the institutional function of organic law is given primary consideration as a mechanism that indirectly protects fundamental rights and freedoms. Since organic laws are promulgated to promote clear constitutional objectives, its scope differs from state to state on account of varying historical contexts, despite sharing a similar origin. In the hierarchy of norms, organic law is said to be parched between statutory law and constitutional law. Organic laws in Africa were inspired by the decolonisation process especially in Francophone rather than Anglophone countries. They are arguably only variations of European versions but modified to suit local circumstances. Since newly formed African states after independence were not cohesive due to ethnicity, they were forced to co-exist while Francophone countries adopted organic laws as a mechanism to promote internal stability, strengthennational cohesion, and avoid authoritarian tendencies. The main question that arises is whether Francophone countries’ adoption of organic laws has led to better protection of institutions and fundamental rights and freedoms when compared to Anglophone countries? Existing evidence demonstrates that Francophone countries have experienced more violent constitutional and regime
changes than their Anglophone counterparts indicating that the adoption of organic laws has not necessarily led to better outcomes.
Keywords: organic law; African constitutionalism; comparative constitutional law; qualified law; qualified majority; legislation; judicial branch; hierarchy of norms