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Special Issue: South African Journal on Human Rights

Deadline: 31 March 2020

Separation of Powers, the Judiciary and the Politics of Constitutional Adjudication

That the doctrine of separation of powers as a key feature of South African constitutionalism in the democratic era is axiomatic hardly requires elaboration. Less obvious, and the subject of increasing contestation over the last decade, have been the political implications of this doctrine under a supreme constitution that has, among other things, distributed power beyond the ‘usual’ three branches (legislative, executive and judicial) by establishing independent chapter 9 institutions supporting democracy; incorporated an extensive list of constitutional rights that include social and economic rights; and established a quasi-federal system dividing power between national, provincial and local governments in accordance with principles of co-operative governance, a hybrid system of governance with features deriving from both parliamentary and presidential systems of government and a legal regime of extended locus standi matched by the courts enjoying extensive constitutional jurisdiction.

Over the last 25 years, the South African courts have elaborated on the doctrine on numerous occasions, often making decisions and crafting remedies primarily in terms of the logic of separation of powers. Thus, much like the rule of law, the separation of powers has emerged as a foundational constitutional value and been given doctrinal content in guiding how the courts interpret relations between constitutional structures. Jurisprudentially, the practicalities and contours of how, when and by whom the separation of powers should be determined have proven to be challenging. This is particularly the case in a context where the disputes have developed an increasingly political nature, often signifying clashes between those wielding constitutional power. The law reports are replete with judgments, where the South African judiciary has been called upon to intervene in disputes that require it to determine the nature and extent of power exercised by various constitutional structures, including itself.

The past decade in South Africa, the greater part of which was under the presidency of former president Jacob Zuma, was especially characterised by heightened political contestation. This often resulted in extensive litigation or ‘lawfare’, as some have referred to it, and thrust the courts into the forefront of resolving thorny political contestation. This has had profound implications for the judiciary, first, in terms of its relations with other constitutional structures, and second – but most important – how it determines the parameters of when and where courts should intervene. Or in short, where and when it is appropriate and necessary to assert its constitutional jurisdiction over a matter. In Mazibuko, Leader of the Opposition in the National Assembly v Sisulu MP Speaker of the National Assembly 2013 (4) SA 243 (WCC), Davis J warns against a ‘politicisation of the judiciary’ entailing ‘drawing the judiciary into every and all political disputes, as if there is no other forum to deal with a political impasse relating to policy, or disputes which clearly carry polycentric consequences beyond the scope of adjudication.’ Recently, utterances by politicians have raised questions about the appropriateness of criticisms of the judiciary, particularly when they go beyond the letter of the judgment. This has, in turn, led some to suggest that it may be necessary to consider instituting criminal contempt of court proceedings against those responsible for such utterances. The prevailing state of affairs raises many questions regarding the nature and conception of South African constitutionalism, which was the subject of critical examination in a special issue of the South African Journal on Human Rights entitled ‘Conquest, Constitutionalism and Democratic Contestations’ published in the 2018 volume.

Against this background, the South African Journal on Human Rights is calling for the submission of papers to be considered for publication in a special issue to be entitled ‘Separation of Powers, the Judiciary and the Politics of Constitutional Adjudication’. The primary aim of the special issue is to bring together scholars who are interested in critically reflecting on developments in South Africa’s separation of powers jurisprudence and theory. In particular, the issue editors are interested in receiving submissions that examine the role and function of the judiciary through its judgments in shaping the landscape of constitutional politics, as well the implications of this for the consolidation of South Africa’s democratic constitutional project. In particular, scholars are asked to make contributions that engage one or more of the following themes:

South African Journal on Human Rights

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  • The nexus between South Africa’s constitutional theory of separation of powers and the judicial interpretation of the doctrine
  • What it means to develop a ‘distinctively South African model of separation of powers’
  • Theoretical analyses of the Constitutional Court’s separation of powers jurisprudence
  • The Constitutional Court’s control of its own jurisdiction, managing politics through access
  • The Constitutional Court’s (diminishing) use of comparative separation of powers jurisprudence
  • Dissenting judicial opinions and confronting the question of judicial overreach
  • Constitutional supremacy, separation of powers, political action and judicial review
  • The judicialisation of politics and its consequences for representative and participatory democracy
  • Constitutional democracy, politics and determining the appropriate limits of adjudication
  • The role and influence of public interest litigation organisations in shaping South Africa’s separation of powers jurisprudence while holding political actors accountable

Submission Guidelines

The South African Journal on Human Rights looks forward to receiving intellectually stimulating papers from a wide variety of scholars, representing an intergenerational and gender mix. We encourage both established and emerging scholars to consider contributing.

Contributors may submit articles or case notes on the above themes and topics for consideration by the South African Journal on Human Rights editorial committee. All submissions must be in compliance with the South African Journal on Human Rights’ Instructions for Authors and shall be subject to the usual processes of double-blind peer review and meet with the journal’s usual requirements for publication. All submissions must be submitted through the Journal's online submission site by 31 March 2020.

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