A Tactical Separation of Powers?

Constitutional Court Review, Forthcoming

U of Chicago, Public Law Working Paper No. 709

23 Pages Posted: 23 Apr 2019 Last revised: 30 Jul 2019

See all articles by Aziz Z. Huq

Aziz Z. Huq

University of Chicago - Law School

Date Written: April 10, 2019


This essay explores the possibility that courts can play a role in arresting damage to constitutional democracy and in hindering processes of democratic backsliding. To that end, it examines closely four decisions in which the Constitutional Court of South Africa has responded to state capture as a threat to “constitutional democracy.” Each of these cases concerns an effort either to stymie one of President Zuma’s efforts to entrench himself, or else an oppositional effort to oust him from power. One of the four cases was decided after Zuma resigned in February 2018. I include it here because it concerns Zuma’s prosecutorial appointments, which were part of his entrenching strategy. These cases are rightly perceived as component parts of an accountability process in which the Court's tactical (rather than principled) use of structural constitutional ideas played a key role.

Keywords: comparative constitutional law; separation of powers; democratic decline

Suggested Citation

Huq, Aziz Z., A Tactical Separation of Powers? (April 10, 2019). Constitutional Court Review, Forthcoming, U of Chicago, Public Law Working Paper No. 709, Available at SSRN: https://ssrn.com/abstract=3369820

Aziz Z. Huq (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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