Diritto Pubblico Comparato ed Europeo

Sommario

1. Costituzione e testo. - 2. La Costituzione senza testo. - 3 Il potere e i militari. - 4. Il partito unico. - 5. Il controllo sull'attività giudiziaria. - 6. Il capo dello Stato. - 7. Una lacuna nella letteratura. - 8. La corruzione. - 9. La concessione. - 10. L'etnia. - 11. Costituzionalismo africano, diritto africano tradizionale e diritto coloniale.

Abstract

In sub-Saharan Africa, rules regarding acquisition and sharing of power among supreme authorities of the State are not set by Constitutional Courts. They are set by reality. Political power is gained with a military coup. Military power overcomes civilian power. Party is single. The Head of State gathers in his hands all powers. The judiciary is not independent from political power. Property is widely concessionary, and the concession is used by the ruler to remunerate his supporters. Administrative authority is exercised according to personal, even economic interests of the official. All these patterns are somehow linked to African tradition. They have not been fought at all by colonial policies, that in fact contributed to strengthen them. The above sketch does not take into consideration two remarks. African law (including constitutional law) is often related to elements originating from supernatural (divine, where Islam leads; holy, in other cases). The life of the African individual does not take place in the State, but in the ethnicity. The ethnicity is natural, the State is artificial. The ethnicity is too tiny to perform the functions of the State. But the law will miss its goals unless it will define the respective tasks of the State and of the ethnicity.