A Constitutional Prod: Has Transformative Constitutionalism in Africa resulted in Institutional Change and Power Shifts in Tax Administration?

This is a postdoctoral project funded by the British Academy and undertaken by Daisy Ogembo.

About the Project 

A transformative constitution has been described as a political but nonviolent vehicle, grounded in law, intended to achieve radical social change through the enactment, interpretation, and enforcement of the constitution. According to Klare, the goal of this transformative process is to radically shift a country’s political and social institutions, and power relationships, prodding them towards ‘democracy, participation, and egalitarianism’. Judges play a significant role in the transformation process; their radical interpretation of the constitution is crucial to the attainment of the justice, democracy, and egalitarianism that the transformative constitutions promise.

It is inevitable that this transformative process will unsettle long and well-established rules, systems, and practices. In tax law, for instance, radical social change is likely to produce tension between the desire to uphold the supremacy of the transformative constitution, and the desire to uphold the integrity of well-developed and established rules and systems of tax law and policy.

In this project, I look at Kenya and South Africa’s experience with transformative constitutionalism and address a series of issues regarding the intersection of transformative constitutionalism and tax law and policy:

1. Whether tax law and policy in the case countries need the radical change that transformative constitutionalism promises to offer; if so, what areas of tax law and policy would need such transformation?
2. What does greater democracy, participation, and egalitarianism mean in the context of tax law and policy in the case countries? Are the tax systems, including administration and policy, in the case countries being prodded towards satisfying those aims?
3. Have the courts in the case countries made use of the transformative constitutions to expand the scope for review of administrative decisions beyond the narrow procedural areas permitted under administrative review?
4. Would the transformation of the tax systems in the case countries have any implications for the global tax system?

I am interested in investigating these issues as they apply in the case-study countries as well as their relevance for other African countries that have enacted transformative constitutions, like Zimbabwe, or may enact them in future.