Constitutional Courts as Democratic Consolidators: Insights from South Africa after 20 Years

Abstract

Twenty years after the end of apartheid, South Africa’s Constitutional Court is one of the few meaningfully independent public institutions in the country. While not wholly autonomous from politics, the Court has shown itself to be detached enough on occasion to hold the ruling African National Congress (ANC) to account. This article explores how the Court has come to play this role. It starts by identifying two contrasting currents in the literature on the conditions for independent judicial decision-making: one that emphasises the determining influence of contextual factors and another that stresses constitutional courts’ capacity strategically to build their institutional power. The article then uses these two currents to suggest a qualified feedback-loop theory of the role of constitutional courts in processes of democratic consolidation. By carefully managing public perceptions of their appropriate role in national politics, the theory runs, constitutional courts may be able to expand the range of democratic rights that they are able to enforce. In turn, this may contribute to improvements in the functioning of the democratic system in ways that sustain the court’s democracy-strengthening capacity over time. The second half of the article illustrates the explanatory power of this theory in the South African case. While the Constitutional Court has been reluctant to offer a substantive theorisation of the threat posed by the ANC’s ongoing electoral dominance, it is argued, it has not been an entirely passive actor in the drama of South African politics. Using traditional formalist methods of legal reasoning, it has been able to expand the reach of the Constitution into areas traditionally thought to be off limits. In this way, the Court has been able to counteract some of the more pernicious effects of the country’s slide into maladministration, patronage politics and corruption.