On 9 October 2013, Professor Samuel Issacharoff discussed his upcoming article, The Democratic Risk to Democratic Transitions, at the Constitutional Transitions & Global and Comparative Law Colloquium. Issacharoff is the Bonnie and Richard Reiss Professor of Constitutional Law at NYU School of Law. Issacharoff had presented the paper earlier this year as the lead paper on a panel at the 5th Constitutional Court Review Symposium in Johannesburg, South Africa. The paper will appear in Volume 5 of the Constitutional Court Review later this year.
The article examines the relation between the South African Constitutional Court and the institutions of democratic governance in that country. Issacharoff 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 Constitutional 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.
Issacharoff’s 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 with other leading cases, 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.
During the packed colloquium session, Issacharoff delved into the question of how a constitutional court operating in a dominant-party democracy should position itself. On the one hand, its task is to interpret and uphold the constitution, which in this context necessarily requires the court to rule against the majority party in certain cases in order to protect minority interests. On the other, if the court issues too many decisions that anger the dominant party, the political branches can weaken or ignore the court in a variety of ways. Issacharoff and the colloquium attendees discussed some of the strategies a court in a dominant-party democracy could use to play a meaningful role in constraining the majority while shielding themselves from political attack.