Lesson 1: Constitutional and Administrative Law for Postgraduates

SUMMARY

• Architectures: SA (full justiciability + openness); India (expansion by interpretation); Nigeria and SL (two-tier); UK (HRA ss 3-4, declaration of incompatibility).
• HRA is 1998 (commenced 2000): lecture dates corrected.
• Belmarsh: emergency conceded; indefinite foreigner-only detention disproportionate and discriminatory; s 4 declaration; Parliament responded.

SUMMARY

• Trilogy travels; intensity varies: UK (proportionality alongside Wednesbury); India (Maneka constitutionalises fairness); SA (s 33 + PAJA constitutionalise the grounds); SL (received trilogy via s 134).

SUMMARY

• Toolkit: ombudsman (SL s 146; SA Public Protector binding-unless-set-aside); anti-corruption agencies; specialist tribunals; legitimate expectation as standard-setting; e-governance.

Case Study: NM and Others v Smith and Others ZACC 6

Facts. A biography of politician Patricia de Lille, written by Charlene Smith, published the names and HIV-positive status of three women who had participated in clinical trials, without their consent. The women sued for invasion of privacy. Issue. Does publishing a person’s HIV status without consent violate constitutional privacy and dignity, and how does it balance against press freedom? Decision. The Constitutional Court found for the women: HIV status lies at the intimate core of private life; its non-consensual disclosure violated privacy and dignity, and the free-expression interest could not justify naming them without consent; damages were awarded. Why it matters. It is Africa’s leading medical-privacy case, and its logic scales directly to databases: if one book’s disclosure wounds dignity, a leaking national health database wounds it at scale, which is why data protection statutes are constitutional rights infrastructure, not mere technical regulation.

SUMMARY

• Anchors: ss 22, 25, 27; benchmark: GDPR 2016.
• Nigeria DPA 2023 enacted; SL: Cybersecurity Act 2021 enacted, Data Protection Bill 2025 still a bill.
• NM v Smith: non-consensual HIV disclosure violates privacy and dignity; scales to databases.

Case Study: SERAP v Federal Republic of Nigeria (ECOWAS, 30 November 2010)

Facts. The Socio-Economic Rights and Accountability Project sued Nigeria and its Universal Basic Education Commission before the ECOWAS Court, alleging that massive corruption in basic-education funds denied Nigerian children the right to education. Nigeria objected that education is non-justiciable under its Chapter II directive principles and that SERAP lacked standing. Decision. The Court dismissed both objections and proceeded: the right to education in art 17 of the African Charter, which Nigeria ratified, is justiciable before the ECOWAS Court regardless of domestic non-justiciability, and public-interest standing is available in human rights suits (actio popularis). On the merits the Court recognised the right and directed that stolen education funds be covered while lacking proof against every named official. Why it matters in Sierra Leone. Sierra Leone is an ECOWAS member: the Charter’s socio-economic guarantees are litigable in Abuja even though Chapter II is barred at home by s 14; SERAP is thus the practical answer to the justiciability wall, and, with Sam-Sumana and Torkornoo, evidence of a regional constitutionalism converging over the heads of national constitutions, limited always by the enforcement gap.

SUMMARY

• Convergence mechanisms: express invitation (SA s 39(1)); institutional borrowing (Chapter 9); doctrinal migration (proportionality, basic structure); supranational courts (ECOWAS).
• SERAP: education justiciable under the Charter at ECOWAS despite domestic bars; public-interest standing.
• Recurring caveat: regional judgments face national enforcement gaps.

SUMMARY

• Presidential executive: s 40 status; s 53 vesting; Cabinet advisory; Ministers departmental.
• Frames: qualification, two-term limit, removal procedures.
• Governance = channels of checking: approvals, review, audit, integrity bodies.

SUMMARY

• Oversight instruments: questions, debates, committees, PAC + Auditor-General, approvals (appointments, treaties s 40(4), budget), censure.
• s 76 disqualifications; s 77 vacation including cross-carpeting (corrected numbering).
• Weakness: party capture turns oversight into theatre.

SUMMARY

• Plumbing: Consolidated Fund; appropriation; parliamentary authorisation; charged expenditures; Auditor-General; PAC.
• Statutory layer: PFM Act 2016; pathology: audit findings without consequences.