The judiciary as a site of the struggle for political power: a South African perspective
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Authors
Mnyongani, Freddy
Issue Date
2011
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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
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Citation
Mnyongani FD. (2011) The judiciary as a site of the struggle for political power: a South African perspective. Speculum Juris 25(2)
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0584-8652