Developmental Constitutionalism and Treaty-based Investment Protection in Africa

A key feature of constitutional governance in Africa is ‘developmental constitutionalism.’ National constitutions are development oriented and impose constitutional responsibilities on State institutions to ensure the realisation of development and to operate within constitutional limits. In this article, I analyse the constitutional right to development and corresponding duties of African States as specific examples of the content of the duty to regulate in the public interest. I also analyse recent international investment agreements (IIAs) with provisions purporting to preserve development policymaking autonomy
to contest their assumed efficacy. I argue that the constitutional right to development and corresponding duties do place limitations on the competence of African States to conclude IIAs that limit their authority to regulate in furtherance of development objectives. I also argue that the reforms of IIAs do not, and are less likely to, achieve the objective of preserving regulatory autonomy for development policymaking because key elements constituting
the reforms have merely acknowledged the duty to regulate and have failed to carve out areas of development policy that cannot be the subject of investment treaty arbitration. To reclaim development policymaking autonomy, investment treaty reforms must be related and undertaken with reference to the duty to regulate in specific cases of human rights (including the right to development) and must incorporate enforceable rights of States against multinational business entities.