The judiciary as a site of the struggle for political power: a South African perspective

Abstract

Africa may have won the battle against colonialism, but the struggle towards constitutionalism and democracy is far from over.1 While constitutionalism is about the locus and limits of power, democracy is about formal and substantive equality and respect for rights.2 The relationship between the two concepts is one marked with contradictions and at times paradoxes. A political system can be constitutional without necessarily being democratic, but a true and sustainable democracy is impossible without constitutionalism.3 Africa has embraced these paradoxes. It was Okoth-Ogendo who wrote about the African constitutional paradox of committing to the idea of the constitution, while at the same time rejecting the classical notion of constitutionalism.4 Constitutionalism is firmly rooted in the doctrine of separation of powers and the subordination of the exercise of governmental power to legal rules.5 One consistent failure of the post-independence African constitutions that Okoth-Ogendo laments has been their failure to regulate the exercise of power.6