The Judicial Role in the Legislative Lawmaking Process in Africa: the South African Case

Mamogale J. Majuta, Tsoeu Maria, Kgalema Mathome

Abstract


The independence of the judiciary is crucial for an effective functioning democracy. Yet, the questions are; what is the role of the judicial system in the legislative lawmaking process, which is supposed to be an exclusive constitutional responsibility of the legislatures? How does the judiciary account and in what manner? Reviewing literature and using data from focus group interviews with relevant stakeholders in South Africa, this study tries to solve this dilemma posed by the doctrines of separation of powers and checks and balances in a constitutional democracy. The paper found that in practice the South African judiciary plays a very minimal role in the legislative lawmaking process. Its role is only limited to judicial interpretation and review of government policies. In addition, it has been found that the judges of the courts only account directly to the law.

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References


Aderibigbe, O.I. 2012. “An Independent Judiciary; Panacea for a Sustainable Democracy in Nigeria” http://segunaderibigbe.hubpages.com (accessed 10 December 2013).

Albertyn, C. 1995. „National machinery for ensuring gender equality‟, In Liebenberg, S. (ed). The Constitution of South Africa from a Gender Perspective. Cape Town: The Community Law Centre.

Booysen, S. 2001. “Transitions and trends in policymaking in democratic South Africa,” Journal of Public Administration, 36(2): 125-144.

Contini, F., and Mohr, R. 2007. “Reconciling independence and accountability in judicial systems,” Utrecht Law Review, 3(2): 26-43.

Czapanskiy, K. 1995 „Gender equality under the constitutions of South Africa and the United States‟, In Liebenberg, S. (ed). The Constitution of South Africa from a Gender Perspective. Cape Town: The Community Law Centre.

Davis, D., Chaskalson, M., and De Waal, J. 1994. “Democracy and Constitutionalism: The Role of Constitutional Interpretation”, In Van Wyk, D., Dugard, J., Bertus de Villiers, B., and Davis, D. (eds). Rights and Constitutionalism: The New South African Legal Order. South Africa: Juta & Co, Ltd.

Dugard, J. 1994. “International Human Rights” In Van Wyk, D., Dugard, D., de Villiers, B., and Davis, D. (eds). Rights and Constitutionalism: The New South African Legal Order. South Africa: Juta & Co, Ltd.

Ferrer, K. 2004. The Micro-Foundation of Ethnic Voting: Evidence from South Africa. Afrobarometer Working Paper No. 40, Retrieved 27th October 2013, http://www.afrobarometer.org (accessed 11 December 2013).

Gordon, A., and Bruce, D. 2007. Transformation and the Independence of the Judiciary in South Africa. The Centre for the Study of Violence and Reconciliation: Johannesburg.

Gutto, S.B.O. 2001. Equality and Non-Discrimination in South Africa: The Political Economy of Law and Law Making. South Africa: New Africa Books.

Habyarimana, J., Humphreys, M., Posner, D.N. and Weinstein, J.M. 2007. “Why Does Ethnic Diversity Undermine Public Goods Provision?,” American Political Science Review, 101(4): 709-725.

International Bar Association. 2006. Comments on the impact of South Africa‟s Constitution Fourteen Amendment Bill and the Supreme Courts Bill.

International Commission of Jurists. 2005. Kenya: Judicial Independence, Corruption and Reform, Geneva: Switzerland.

The Judiciary and Lawmaking Process in Africa

Kadalie, R. 1995. “Women in the new South Africa: From transition to governance” In Sandra Liebenberg (ed). The Constitution of South Africa from a Gender Perspective. Cape Town: The Community Law Centre.

Libonati, M. 1989. “State Constitutions and Legislative Process: The Road not Taken,” Boson University Law Review, 89: 863-898.

Mabuza, K. 2013. „I won‟t sell my soul‟: Independence of judiciary vitalMogoeng. Sowetan Newspaper, 14th October.

Motala, Z. 1995. “Toward an appropriate understanding of the separation of powers, and accountability of the executive and public service under the new South African order,” South African Law Journal, 112: 503-518.

Ngandwe, P.J. 2006. The role and impact of the judiciary in the law-making process in South Africa, Thesis submitted at University of the North West, Mafikeng: South Africa, http://hdl.handle.net/10394/3119 (accessed 11 December 2013).

Onyia, O. C. 2012. “The Role of the Judiciary in a Constitutional Democracy”. Paper delivered at „Full Independence of the Judiciary; an Imperative for Effective Prosecution of Suspects of Oil Subsidy Scam in Nigeria‟. 14th September 2012, www.impactng.com/impact/news_all.php (accessed 11 December 2013).

Peri, A. 2012. “Judicial Independence vs. Judicial Accountability: Judicial Selection Models for Constitutional Courts. A Comparative Analysis,” Comparative Law Review, 13: 1-30.

Rawal, K. 2013. “Constitutional and Judicial Reforms: The Kenya Experience”. Paper presented at the Southern African Chief Justices‟ Forum Annual Conference, Zambia, 2nd August 2013.

Rickard, C. 2003. The South African Judicial Services Commission. Paper delivered at the Conference on “Judicial Reform: Function, Appointment and Structure”, University of Cambridge, 4th October, http://www.law.cam.ac.uk/docs/view.php?doc=879 (accessed 11 December 2013).

Steinman, A.N. 2004. “A Constitution for Judicial Lawmaking”, University of Pittsburgh Law Review, 65: 545-596.

Stewart, I. 2002. “Montesquieu in England: his „Notes on England‟, with Commentary and Translation”. Oxford University Comparative Law, http://ouclf.iuscomp.org/artciles/montesquieu.shtml (accessed 11 December 2013).

The Constitutional Court Judgement Report. 2012. Premier, Limpopo Province vs Speaker of the Limpopo Provincial Legislature and Others, Case CCT 94/10 (2012) ZACC 3.

Van Cranenburgh, O. 2009. “Restraining executive power in Africa: horizontal accountability in Africa‟s hybrid regimes,” South African Journal of International Affairs, 16(1): 49-68.

Wacks, R. 1984. “Judges and injustice,” South African Law Journal, 101(2): 266285.

Wesson, M., and Du Plessis, M. (n.d.) The Transformation of the Judiciary: A paper commissioned by the South African Presidency into the Fifteen Year Policy Review, South African Presidency: Pretoria.


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