Like other regions of the world, academic freedom is on the decline in Africa. While there are some generic factors accounting for this phenomenon worldwide, others are fundamentally unique to the African context. These are related principally to the subject matter of coloniality of higher education on the continent. This study addresses these matters by, among others, discussing the origins of the university in pre-modern Africa and the place of academic freedom in it. This development is followed by the emergence of university education in Europe through the application of the liberal script and which contributed to the sidelining and eventual general demise of higher education institutions with their roots in pre-modern Africa. The work contends that while one may trace the origins of the university/academic freedom to Africa, academic freedom as it stands today is shaped by the liberal script with hardly any reference to the root of higher education in Africa. Therefore, the meaning, understanding and application of academic freedom do not reflect the realities of higher education in Africa. This work proposes the adoption of a relative universalist approach, as opposed to the liberal approach, which is clothed with universality, but in reality, it is a reflection of a European idea of academic freedom. This approach is considered necessary to reflect the African reality of academic freedom which will help to identify effective advocacy tools to promote and protect academic freedom in Africa and thereby make academic freedom more meaningful for application in the region.

This study examines the landmark rulings in the “BBI Case”, adjudicated successively by the High Court, Court of Appeal, and Supreme Court of Kenya, from the perspective of comparative political process theory [“CPPT”]. The BBI case involved a constitutional challenge to a set of seventy-four proposed constitutional amendments to the Constitution of Kenya, 2010. It raised a host of issues, ranging from the applicability of the basic structure doctrine, the role of the President in initiating constitutional change, Presidential immunity, and Fourth Branch institutions, among others. This paper analyses two crucial issues in the case: the articulation – for the first time in its history – of a process-oriented basic structure doctrine, by the High Court and the Court of Appeal; and the concurrent holding of the High Court, the Court of Appeal, and the Supreme Court prohibiting the President of Kenya from initiating a constitutional amendment through the “popular initiative” route. It argues that on these issues, the Kenyan courts’ reasoning constitutes a creative, unique, and valuable contribution to CPPT, in the context of constitutional change. When faced with the possibility of abusive amendments within the framework of a two-tiered amendment process, the Kenyan courts responded by setting out rigorous procedural constraints upon the amendment power. As a corollary, the role of the judiciary under this approach is not to invalidate or veto abusive constitutional amendments, but to ensure that they pass through a substantive, rich, and deep process of public participation.

Europe has recently struggled with democratic backsliding and autocratization. This autocratization has accompanied a decline in academic freedom in many backsliding countries, as reported by the Academic Freedom Index. Can the standards set by the European supranational courts effectively safeguard academic freedom? This article provides answers to this question. It argues that despite differences in their approaches, the theoretical conceptions of scholarship held by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (ECJ) share an essential feature: both have moved towards embracing the ‘liberal science script’ by protecting academic freedom. The main difference between the two courts’ approaches is the subject of protection. The ECtHR focuses on the individual rights of academics: It protects free speech in the academic context by establishing a high standard for holding academics liable for publicly expressing their views inside and outside of academia. The ECJ has applied the concept of institutional autonomy, thereby setting a high standard for safeguarding the freedom of academic institutions. This standard can be applied with regard to the demands placed by policy-makers on academia regarding its role in democracy, including gender equality requirements for EU research funding.

Reflecting on the Islamic law–secular law balance in past Afghan constitutional regimes and contemporary Taliban rule, this paper contextualizes Afghan constitutionalism in a broad spectrum of constitutional traditions present in other Islamic law states (ILS). Though the Taliban are reticent about their plans for a constitutionally-anchored society, similar to processes elsewhere, the organization’s previous drafters relied upon the country’s previous constitutional regimes and on other countries’ constitutions. Though necessarily aspirational, we argue that taking lessons from the Taliban’s history, Afghanistan’s own rich constitutional tradition, and contemporary ILS’ approaches—combined with international cooperation—there may be a way forward for a Taliban-led Afghanistan: one grounded in a stable constitutional order that protects the dignity of Afghan people. But since the Taliban regained control of the country, its people have endured extreme social and economic hardship. The ongoing crisis cannot be ignored. This paper does not seek to disregard or minimize Taliban-induced atrocities; rather, by exploring the history of Afghan constitutionalism through a different lens, it looks to provide a building block for a future, more stable solution. While the existing scholarship focuses mainly on the current Taliban practices, we examine past Afghan constitutions and propose the potential for specific legal solutions in the context of the country’s robust constitutional tradition. We rely on qualitative and quantitative data in analyzing the nexus between secular law and Islam-based constitutional language, highlighting certain trends and patterns. In an important way, therefore, our research places the Taliban efforts at constructing a legal system as part of an evolving—however jolted by the Taliban—constitutional process.

This article highlights the challenges of external reactions to authoritarian higher education governance in certain Central and Eastern European countries, especially Hungary and Poland. It interprets the political change in these countries as an authoritarian cultural backlash, which is not just a legal or political problem, but a kind of post-fascist cultural revolution contesting the liberal script. First, the article explains the framework of authoritarian policing in academia based on the more general works of Bob Altemeyer and Zeev Sternhell. Second, it tries to answer the question: What tools could counter these tendencies from the perspective of the European Union? As the article interprets the rise of authoritarianism as a phenomenon rooted in the cultural deficit of the countries concerned, it argues that a programme for a democratic and pluralist cultural counter-revolution should be implemented. However, no nation can be democratized solely by external actors, and the basics of democratic thinking should be developed from the grassroots level. If the crisis in academia is rooted in a value-crisis within the societies concerned, then measures countering this phenomenon should also include promoting Enlightened pluralism at all levels of these societies.

Comparative Political Process Theory or Comparative Representative Reinforcement Theory (CPPT/CRRT) is an emerging scholarly field that theorizes about the courts’ role in the broader comparative universe. Considered an intellectual descendent of John Hart Ely’s work in the American context, CPPT/CRRT emphasizes the courts’ role in preventing democratic backsliding, promoting equality, enhancing the efficacy of democratic institutions, fostering deliberative processes, and addressing the failures of majoritarian politics. CPPT/CRRT scholars generally advocate broadening judicial powers and capabilities to fulfill these roles. This article examines the practicality of such judicial responsibilities through the lens of the review of constitutional amendments in India. It concludes that, despite the theoretical aspirations of CPPT/CRRT, courts are unlikely to meet these expectations in practice due to their institutional limitations. The positive outcomes of judicial interventions tend to be more modest than the protective and proactive actions envisioned by CPPT/CRRT proponents. Moreover, the modest benefits also come at the cost of the potential adverse impacts that an empowered judiciary may impose on the constitutional fabric. Consequently, this article suggests a need for recalibration of CPPT/CRRT scholarship wherein its goals are moderated and its aspirational objectives balanced against the potential adverse effects of an empowered judiciary on constitutional systems.

The European Court of Human Rights has long been cast as a defender of democracy in Europe. Yet, this idea has not always been at the core of the Court’s perception in the literature or indeed aligned with its jurisprudence which are often viewed in more Dworkinian terms. We suggest that there are good reasons, however, to take this idea more seriously in line with some of the early discussions on the function of the Convention. We argue that a good way to flesh out this idea is by drawing on the recent discussion on comparative representation reinforcement, sometimes labelled comparative political process theory, which builds on earlier work by US constitutional theorist John Hart Ely. Such an – expanded and updated – Elyian approach, we believe, has much to offer not just for domestic constitutional courts around the globe, but also for a supranational human rights court such as the ECtHR. We spell out what this might mean for the Court’s jurisprudence with reference to a few key areas of jurisprudence and the protection of minority rights in particular and sketch some implications for when to exercise restraint and when to intervene in a robust manner.

This article examines the status of academic freedom in Hong Kong in light of the increasing securitization of higher education since the implementation of the National Security Law (NSL) in 2020. It provides an analytical framework to comprehend the changing landscape of academic freedom in Hong Kong, highlighting the impact of the NSL and the conflict between the necessity of political control on securitized campuses and the demand for international, free, and high-quality universities to make Hong Kong a global hub for higher education. The article concludes by asserting that the NSL has reshaped and will continue to impact academic freedom and university autonomy concerning core security issues, but there is still a possibility to establish a defendable space for genuine academic freedom in classrooms.