A Constitutional Prod: Transformative Constitutionalism and Taxation

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In this post, Dr Daisy Ogembo discusses Transformative Constitutionalism and Taxation

Dr Daisy Ogembo

I recently joined Birmingham Law School from the University of Oxford where I was a British Academy-funded postdoctoral research fellow and a Junior Research Fellow at St Edmund Hall. My postdoctoral project is funded until late 2023 and, in this blogpost, I briefly discuss what this project is about, what it aims to do, and why I believe it is a crucial topic.

This project is about the constitutional aspects of tax law, policy, and administration in Kenya and South Africa, and the changes that have occurred therein in the last two decades. It is a project that tells the story of constitutional change in these countries, but it goes far beyond that. It also tells the story of developing and evolving tax systems, systems being prodded and shaped, not just by rapid changes in domestic and global social, economic, and political factors, but also by radical constitutional changes that have shifted and continue to shift the countries’ political and social institutions, and power relationships. In simple terms, this project demonstrates the complex and dynamic connection between tax and constitutional law.

South Africa and Kenya underwent a tremendous constitutional change in the last quarter of a century, adopting radical constitutions which have come to be known as ‘transformative constitutions’.  A transformative constitution has been described as a political but nonviolent legal vehicle that aims to achieve radical social change through its enactment, interpretation, and enforcement. 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’.[1] 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.

A study of transformative constitutionalism can take many forms. For instance, a purely doctrinal approach would be looking at changes in the legal text by comparing the old constitution and the new one or analysing court cases that interpret constitutional provisions in order to set out what the new law is. A different potential approach would be to interrogate the potential or actual influence of the new constitutional order on different areas of the law (including religious rights, property rights, environmental law). This project takes the latter approach and aims to interrogate the influence of transformative constitutionalism on taxation.

This project proceeds from the premises that studying taxation in the context of transformative constitutionalism is imperative because of the significant role that taxation plays in the formation, growth, and stability of the state. First, tax is politically significant; the revenue raised through taxation is the lifeblood of the state. Without the ability to raise revenue through the levying of taxes, the executive cannot function, maintain critical institutions, and meet its socio-economic obligations to its citizens. Second, tax is economically vital; the executive’s ability to increase tax rates can affect citizens in negative ways including a reduction in income or the closure of fledgling businesses; how increased tax revenue can also result in better provision of social services and public goods. Third, tax is administratively important because proper tax administration contributes to administrative justice and the upholding of the rule of law; the decision-making powers of the tax administration have the potential to affect the freedoms of all citizens, to varying degrees. Finally, revenue raising through taxes has the potential to contribute to state building, responsive government, and accountability.  Tax bargaining between citizens and governments over tax revenue collection can have significant positive effects on governance since efforts by governments to expand the tax revenue they collect can often result in a push by citizens for reciprocal service provision and expanded accountability.[2]

The broad aim of this project is to demonstrate the complex and dynamic connection between tax and constitutional law and the benefit of understanding the place of tax in a transformed constitutional order derived by the lawyer seeking to gain greater knowledge of both fields. The goal is to show that embarking on a study of changes in the constitutional order of a state can give us tremendous insight into the evolution of the state’s tax system and, similarly, a study of the changes in a state’s tax system can give us insight into changes in the constitutional order. This project goes to the heart of the symbiotic relationship between these two legal fields; tax law is incredibly relevant for public lawyers and an understanding of significant changes in constitutional law is vital for tax lawyers. De Cogan appropriately argues that there is an overlap between the concerns of tax and constitutional lawyers: ‘On the one hand, constitutional change might destabilise otherwise settled areas of tax law. On the other hand, the way in which taxes are imposed, administered, and adjudicated might help to shape the constitution as it develops.’[3]

It is inevitable that the transformative process described by Klare will unsettle long and well-established rules, systems, and practices. Thus, this project argues that such radical changes in the constitutional order are highly likely to destabilise otherwise settled areas of tax law and long-established administrative practices. Radical social change is likely to produce tension between the desire to uphold the supremacy of the transformative constitution, and the desire to maintain the stability of well-developed and established tax rules, policies, systems, and administrative practices.

Bearing in mind the main aims of transformative constitutionalism, this project makes use of the case study method to achieve its broad aims by looking at Kenya’s and South Africa’s (‘the case countries’) experiences with transformative constitutionalism. Kenya and South Africa are excellent cases to study for two reasons. First, they were the first two countries in Africa to adopt transformative constitutions; in that the Kenyan constitution drew heavily from the text of the South African Constitution which came decades earlier, it is likely that other African countries seeking to enact a transformative or radical constitution will borrow heavily from the constitutions of both countries. Therefore, understanding tax as a critical moving part within a radical or transformative constitution in the Kenyan and South African context would be helpful for other countries embarking on a similar path of reform in future. Second, Kenya and South Africa are among the biggest economies in Africa and their (some similar and some different) experiences with the evolution of taxation in the face of constitutional reform is highly relevant for African countries with which they may have similar legal histories, tax cultures, economic systems, or colonial histories.

Through these case studies, I address a series of issues regarding the intersection of transformative constitutionalism and taxation:

  1. Whether tax law, policy, and administration in the case countries were unjust, undemocratic, or inegalitarian to begin with and required the radical change that transformative constitutionalism promises to offer. If so, what areas of law, policy, and administration would need such transformation?
  2. What does greater democracy, participation, and egalitarianism mean in the context of tax law, policy, and administration in the case countries? Are the tax systems 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 administrative review of administrative decisions beyond the narrow procedural areas permitted under judicial review before the transformative constitutions were enacted?
  4. Would the radical transformation of the tax systems in the case countries have significant implications for the future of taxation in Africa more generally, and in the case countries in particular? Would these implications extend to the global tax system by way of African participation in global and multilateral tax negotiations?


[1] Klare, K. E. (1998). Legal Culture and Transformative Constitutionalism. South African Journal on Human Rights, 14(1), 146,150

[2] See Ross, M. (2004). Does Taxation Lead to Representation? British Journal of Political Science, 34(2) and Prichard, W. (2015). Taxation, Responsiveness and Accountability in Sub-Saharan Africa: The Dynamics of Tax Bargaining. Cambridge: Cambridge University Press.

[3] de Cogan, Dominic. “Tax Law, State-building and the Constitution.” Tax Law, State-building and the Constitution. Oxford: Hart Publishing, 2020. 1–30. Bloomsbury Collections p 1

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