Constitution-building court actors in South Africa and Kenya

My dissertation contributes to the theory of constitution-building, treating new constitutions as points of embarkation to fulfil constitutional change and continuity promises, and to manage their tensions, from the perspectives of court actors in South Africa and Kenya. It dissects and critically analyses the delineation and distinctions of constitution-building as a category of constitutional change involving interpretive activity of court actors that is structured within broader political processes of evolving legitimate constitutions in deeply divided societies. This interpretive activity is both novel and pivotal for cultivating constitutionalism in states like South Africa and Kenya, which have lacked deep historical roots of constitutionalism. I offer a descriptive account of their constitution-building court actors who recognise themselves as committed to incrementally fulfilling preferential outcomes of the changes ordained by their respective constitutions through politically effective legal processes. My thesis starts from the premise that the Constitutions of South Africa and Kenya, despite their numerous compromises on fundamental norms and issues by constitution makers, were intended to be implemented in morally and legally fit but politically feasible ways. In so far as constitution-building court actors focus on agreement-making between branches to make constitutions effective in non-ideal contexts for liberal constitutionalism, constitution-building has the virtue of bringing the branches closer together in their respective areas with better results for constitutionalism to nevertheless gain traction. Nonetheless, this does not mean that constitutionbuilding enables court actors to produce coherent and sustainable constitutional results. Rather, as my thesis establishes, constitution-building enables those actors to explain the incoherence and imprecision inherent in their constitutional activities. In this way, my dissertation further contributes to the research on constitutional change in Africa by re-examining the notion of court actors building a constitution both as a key normative dimension of bridging deep division and as an instrument for achieving transformative outcomes. This is done by drilling further into the experiences of South Africa and Kenya. Accordingly, I contribute too to the questions that are occupying South African and Kenyan constitutional scholars, and indeed constitutional scholars in other deeply divided societies in Africa.