The Invisible Constitution in Comparative Perspective

Africa’s Negotiated Settlement (Oxford: Hart Publishing, 2000), 409.

52 

Ibid

.

53 

Constitution de la transition de la République Démocratique du Congo (‘Constitution of the 

Transition’), note 27, Article 154.

54 

Constitution of the Democratic Republic of Congo 2005, Article 211. Brunilda Bara and Jona 

Bara, ‘Constitutional Court and Constitutional Review in Albania: A Historical and Institu-

tional Overview’ (2013) 7 Vienna Journal on International Constitutional Law 214, 215.

---

180 

Caitlin Goss

‘decades of undemocratic rule’ and a host of obstacles.

55

 Although there 

have been issues with the independence of the EIC, it helped to bring 

about peaceful elections and is another example of the way in which an 

interim-era institution can influence the administration of the constitution 

in the long-term.

56

6.3.2.  Judicial Decision-making and the Invisible Constitution

Constitutional courts operating during interim constitutional periods have a 

tendency to respond to or recognise non-textual features, thereby engaging in 

the invisible constitution. In many cases this interim-era jurisprudence may 

persist even after the interim constitution has expired and been replaced by 

a successor, theoretically permanent text. There are a number of reasons for 

this tendency.

First, the changed circumstances associated with the end of the past regime 

often mean that for the first time a constitutional court exists and the politi-

cal climate permits cases involving fundamental human rights to be brought 

before it.

57

 As such, the courts are presented with novel cases requiring deci-

sions on matters that are not resolved in the constitutional text. Second, given 

the changed political climate and the lack of faith in previously tarnished 

political institutions, courts may take an expansive view of their role in the 

newly democratic state. Third, courts may be forced to deal with constitu-

tional ‘bootstraps’ questions, ruling on the validity of the interim constitution 

or the interim drafting process and by necessity going beyond the constitu-

tional text to resolve these questions. Fourth, if an interim constitutional text 

is rushed, incoherent or incomplete, sometimes as a result of having been 

the product of repeated amendments to an earlier constitution, rather than 

a singular text, the court may seek to step in to fill these gaps or to eliminate 

inconsistencies. Fifth, a court may respond to political factors and dynam-

ics in applying constitutional provisions to legislation in the course of judi-

cial review. In some cases, courts may rely on non-textual features in ways 

that are expressly contrary to the terms of the constitutional text. Finally, as 

is particularly evident in the case of Hungary, a high rate of constitutional  

55 

André Mbata B. Mangu and Mpfariseni Budelli, ‘Democracy and Elections in Africa in the 

Democratic Republic of Congo: Lessons for Africa’, The Institute for Democracy, Governance, 

Peace and Development in Africa (2006)  26 

www.idgpa.org/downloads/IDGPA-English%20

3%20-%20Elections%20in%20the%20DRC.pdf

.

56 

See generally 

ibid.

57 

Or, as with the Polish Constitutional Tribunal, an existing Court is granted new powers and 

independence.

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