A Tactical Separation of Powers?

Abstract

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