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Separation of powers and the political question doctrine in South Africa : a comparative analysis

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dc.contributor.advisor Okpaluba, Mathew Chuks Mhango, Mtendeweka Owen 2018-06-04T12:10:34Z 2018-06-04T12:10:34Z 2018-01
dc.identifier.citation Mhango, Mtendeweka Owen (2018) Separation of powers and the political question doctrine in South Africa : a comparative analysis, University of South Africa, Pretoria, <>
dc.description.abstract Section 34 of the Constitution of the Republic of South Africa, 1996 outlines the scope of judicial authority as encompassing the resolution of any dispute that can be resolved by the application of law. The courts in South Africa have developed several justiciability canons that restrain when courts may adjudicate disputes, such as standing, mootness, ripeness, and the prevention of advisory opinions. These justiciability canons emanate from constitutional considerations such as respect for separation of powers and the proper role and scope of judicial review in a constitutional democracy. This study focuses on another justiciability canon - the political question doctrine. This doctrine arises from the principle of separation of powers and, in the main, provides that certain questions of constitutional law are allocated to the discretion of the elected branches of government for resolution. As a result, such questions are non-justiciable and require the judiciary to abstain from deciding them because not doing so intrudes into the functions of the elected branches of government. The underlying theme is that such questions must find resolution in the political process. Through a comparative lens, the study examines the origins and current application of the political question doctrine in selected countries with a view to obtain lessons therefrom. It examines the origins of the doctrine, by placing particular emphasis on the early application of the doctrine by the US Supreme Court. The study also examines the modern application of the doctrine in the constitutional jurisprudence of several countries, including Ghana, Uganda and Nigeria. It advances the view that while the doctrine exists in the South African jurisprudence, the Constitutional Court should articulate and develop it into a clear doctrine taking into account lessons from those countries. The study offers some recommendations in this regard. The study submits that the political question doctrine is an appropriate legal mechanism through which the South African judiciary can address the recent problem of the proliferation of cases brought to the courts that raise non-justiciable political questions and threaten to delegitimize the role of the courts in a democracy. en
dc.format.extent 1 online resource (310 leaves)
dc.language.iso en en
dc.subject Separation of powers en
dc.subject Political question doctrine en
dc.subject Judicial review en
dc.subject Political questions en
dc.subject Policy questions en
dc.subject Classical political question doctrine en
dc.subject Prudential political question doctrine en
dc.subject Constitutional Court en
dc.subject Judiciary en
dc.subject Executive en
dc.subject.ddc 347.1206
dc.subject.lcsh Constitutional law -- Africa en
dc.subject.lcsh Judiciary -- Africa en
dc.subject.lcsh Political questions and judicial power -- Africa en
dc.subject.lcsh Judicial power -- Africa en
dc.subject.lcsh Judicial review of administrative acts -- Africa en
dc.subject.lcsh Constitutional courts -- Africa en
dc.subject.lcsh Judicial independence -- Africa en
dc.subject.lcsh Administrative responsibility -- Africa en
dc.subject.lcsh Separation of powers -- Africa en
dc.title Separation of powers and the political question doctrine in South Africa : a comparative analysis en
dc.type Thesis en
dc.description.department Public, Constitutional and International Law en LL. D.

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