Constitutional Interpretation of Unenumerated Rights

In every State where the rule of law and separation of powers are recognised as norms, the judicial organs bear the ultimate responsibility of interpreting the fundamental law of the land, howsoever called. The judicial organs in diverse States have therefore evolved various approaches in carrying out this responsibility. Experience shows, however, that in interpreting constitutions, particularly in matters implicating life, liberty, and livelihood, the courts in some jurisdictions have recognised claims which are often beyond those explicitly guaranteed in such constitutions, and continue to do so, albeit with some degree of inconsistency. This book acknowledges that the notion of unenumerated rights constitutes an affront to the more entrenched concepts of positivism and formalism and even challenges age-long ideas about the philosophical foundations of human rights. However, extrapolating from case law, juridical pronouncements and ongoing scholarly discourses on the idea of unenumerated rights from different jurisdictions, this book evaluates the potential of this path of judicial innovation in promoting socio-economic rights, human rights, and social justice in Africa.