The democratic risk to democratic transitions

Abstract

This article examines the relation between the South African Constitutional Court and the institutions of democratic governance in that country. It begins by dividing South African constitutional oversight of politics into three phases. In the first instance, and focused primarily on the historic Certification Decision of 1996, the Court enshrined a period of constrained democracy that eased the transition from apartheid. In the second period, the Court continued to exercise its role as protector of individual rights on important matters such as the death penalty and gay marriage, but exercised great restraint in not preempting parliamentary fiscal and policy decisions in cases regarding matters such as demands for property and medical assistance. Yet, this was also the period in which a post-Mandela African National Congress-dominated government used its legislative super-majority to begin constricting its political accountability and the Court basically did not interfere with the ANC’s consolidation of political power. After a period of relative quiescence as to democratic governance, the Consitutional Court appears to be entering a third period, one whose progress is far from set, but meriting of notice. The defining feature of this latest phase is that the ANC is now the established and dominant political force in the country and, thus far, faces no significant political opposition. As is often the case when electoral competition recedes, the dominant party becomes the center for all political and economic dealings with the government, and an incestuous breed of self-serving politics starts to take hold. In this third period, the Court is confronting some of the efforts of the ANC government to place itself beyond customary forms of legal and democratic accountability. The political transcendence of the ANC limits the ability of the political system to correct course or, at the very least, has frustrated many efforts to date. The inquiry then shifts to the jurisprudence of a court confronting the consolidation of one-party dominance. The recent decisions of the South African court are contrasted to other leading case, primarily from Colombia and India, to develop a constitutional concept of accountability even in the absence of direct electoral competition. The article ends with a critique of the efforts to develop such doctrinal coherence thus far in South Africa, presented for the Fifth Constitutional Court Review conference in Johannesburg in July 2013 as part of a symposium on “Constitutional Courts as Hedges Against Democratic Authoritarianism.” The entire set of papers will appear in Volume 5 of the Constitutional Court Review.