Democratization and the Judiciary

The Accountability Function of Courts in New Democracies

Roberto Gargarella, Siri Gloppen, Elin Skaar

• Publisher: Routledge
• Year: 2004
• ISBN:
  9781135756154
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política

This title examines the political role of courts in new democracies in Latin America and Africa, focusing on their ability to hold political power-holders accountable when they act outside their constitutionally defined powers. The book also issues a warning: there are problems inherent in the current global move towards strong constitutional government, where increasingly strong powers are placed in the hands of judges who themselves are not made accountable.

Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court

THEUNIS ROUX

Introduction

Some degree of judicial intervention in politics is an inevitable consequence of the adoption of a supreme-law Bill of Rights. The political branches’ power to allocate resources, however, is conventionally thought to be beyond ‘the limits of adjudication’.¹ Judges, the standard argument runs, are neither mandated nor institutionally equipped to undertake the complex economic and interest-balancing inquiries that inform the allocation of public resources. It is therefore unwise to give them the power to review decisions taken by the political branches in this area, and foolish for judges to assume this power when they are not compelled to do so.

If these propositions are true for judges in mature democracies, one would expect that they would apply with even greater force in new democracies, where the judicial branch is by defmition still in the process of building the legitimacy required to play a meaningful role in politics. It is therefore surprising that some of the most far-reaching decisions in this area have been handed down by courts in Hungary and South Africa —both countries that democratized within the last 15 years. It is even more surprising that, in the case of South Africa, judicial review of political resource allocation has not as yet triggered any significant protest from the executive.² Why has this happened? And what does the South African experience tell us about the capacity of courts to check the power of the political branches in new democracies?

This study attempts to throw some light on these questions by examining four recent decisions of the South African Constitutional Court in which it was required to review the allocation of resources by the political branches. The first case took the form of a socio-economic rights claim, that is a claim based on a right to a particular resource or distribution of public benefits. And, indeed, it is in this context that the judicial review of political resource allocation is most obviously implicated. But the issue has arisen in other contexts as well, most notably in relation to constitutional challenges to legislation or policies allocating resources away from the claimant. The other cases discussed here are all of this type.

The discussion of each case begins with a summary of the formal reasons given by the court for its decision. Thereafter, the purpose is to identify the discretionary gaps exploited by the court in its manipulation of the applicable legal rules. By ‘discretionary gaps’ is meant fissures in the normative structure governing the decision that enabled the court to fashion an outcome in accordance with its sense of the degree of intrusion into politics appropriate to the case concerned. The aim is thus not to engage in a full doctrinal analysis of each case, but to focus on the way the court has used the opportunities presented to it in these cases to define its institutional role in the South African political system.

This way of proceeding brings together two bodies of literature on the role of constitutional courts in new democracies that seem to depart from different premises. On the one hand, political science discussions of this issue tend to assume that courts have a fairly wide discretion to tailor the outcome of controversial cases to the exigencies of the political moment.³ On the other hand, legal academics writing about such cases, certainly in South Africa,⁴ are reluctant to admit that extraneous political factors exert any kind of influence at all on the way judges make their decisions. The approach taken here lies somewhere in between. Legal rules do constrain the exercise of judicial discretion in controversial cases. However, by exploiting ambiguities in the normative structure governing their decisions, courts are able to manage their relationship with the political branches to a considerable degree.

The South African Constitutional Court has shown itself to be particularly adept at this kind of strategic behaviour, using the space provided by the new constitutional order to good effect. In particular, the four cases discussed in this article suggest that the court is scripting a role for itself as legitimator of the post-apartheid social transformation project. The advantage of this role is that it has allowed the court to build its legitimacy by endorsing the political branches’ social transformation efforts. At the same time, the court has been able to give meaningful effect to the Bill of Rights, whilst remaining respectful of the political branches’ residual prerogative to determine public policy.

Before discussing the cases, it may be helpful to readers unfamiliar with the South African constitution, and who wish to compare South Africa to other democracies discussed in this collection, to make some introductory remarks about the composition, method of selection and workload of the Constitutional Court. Although the South African case is undoubtedly significant, it may not be completely generalizable to other new democracies because of these peculiar institutional factors.

The Composition, Method of Selection and Workload of the South African Constitutional Court

The Constitutional Court was established in 1994 under the so-called interim constitution,⁵ an expressly transitional constitution that facilitated South Africa’s passage from white minority rule to non-racial democracy. One of the more unusual aspects of the interim constitution was the role it gave to the court in certifying the final constitution⁶ against a set of negotiated principles. This device, a clear pragmatic compromise between the desire for democracy and the need to keep the transition on track, necessarily thrust the court into the centre of politics. Its decision on this issue,⁷ approving the bulk of the final constitution but remitting several important questions for reconsideration by the Constitutional Assembly, provided an early indication of the court’s astute approach to controversial cases.

If one were to isolate a single non-contingent factor to explain the court’s success in building its legitimacy, it would be that the court is composed of a remarkably talented group of people, all of whom possess impeccable human rights credentials.⁸ Of the original eleven judges appointed, eight were still sitting at the beginning of 2003. When one considers that two of the vacancies were created by ill health, this statistic reflects a high degree of stability in the composition of the court. This has allowed it to build its relationship with the political branches through a series of cases in which it has largely spoken with one voice.⁹

The judges of the court are appointed by a Judicial Services Commission, which is effectively controlled by the majority party in the national government.¹⁰ Given that South Africa is a one-party dominant state,¹¹ this might appear to be a reason for doubting the independence of the court. However, even in mature democracies, the national executive typically has the power to appoint a majority of the highest court on constitutional matters.¹² Few constitutional courts in the world are independent in the strict sense— composed of people with political views opposed to that of the governing political elite. Indeed, constitutional courts of this type, if they existed at all, would be at a distinct disadvantage when checking the power of the executive, since their decisions would be open to the charge of political bias. Conversely, as the South African case illustrates, the fact that a court’s members have political views broadly sympathetic to those of the governing elite may be a necessary condition for them to assert their independence in the narrow sense: the capacity on occasion to say ‘no’ to the executive and ‘make it stick’. The other peculiar feature of the South African Constitutional Court worth mentioning is that it decides a comparatively small number of cases per year—never more than 30, and in some years as few as 20.¹³ This is both an advantage and a disadvantage. The advantage of a low workload is that the court is able to pay close attention to the wording of its decisions, using them as the main means by which to manage its relationship to the political branches. The disadvantage, on the other hand, is that the court has concomitantly less control over its docket. This is compounded by the final constitution’s very broadly framed jurisdictional provisions,¹⁴ which have thus far precluded the development of a political question doctrine on the American model.¹⁵ Deprived of this device, the court has very little option but to accept jurisdiction over controversial cases,¹⁶ and then to use all its considerable rhetorical skills, both to avoid deciding issues that might bring it into conflict with the political branches,¹⁷ and to take on politically useful issues that might not present themselves for decision again.

Discussion of the Cases

Government of the Republic of South Africa v. Grootboom

In the first major socio-economic rights case to come before the Constitutional Court—Government of the Republic of South Africa and Others v. Grootboom and Others¹⁸ —a homeless community challenged their local municipality’s refusal to provide them with temporary shelter. In a decision that has already attracted some international interest,¹⁹ the court held that the state’s failure to make proper provision for people in desperate need violated its obligation under section 26(1) and (2) of the final constitution to ‘take reasonable and other measures within its available resources’ to provide access to adequate housing. It accordingly declared the state’s housing programme as applied in the municipal area in question unconstitutional to this extent.²⁰

At first blush, this decision appears to be a remarkable slap in the face of a government that has made great strides in a short time to redress the apartheid housing-backlog. Closer examination of the reasons for the decision, however, reveals a diplomatically worded and respectful message to the political branches, generally endorsing their efforts, even as the court finds fault with aspects of the national housing programme.

The key discretionary gap exploited by the court in Grootboom was the ambiguity surrounding the application of international law, in particular, General Comment 3 of 1990 issued by the United Nations Committee on Economic, Social and Cultural Rights. Paragraph 10 of this Comment interprets articles 2.1 and 11.1 of the International Covenant on Economic, Social and Cultural Rights as meaning that States Parties have to devote all the resources at their disposal first to satisfy the ‘minimum core content’ of the right to adequate housing. Counsel for the amici curiae in Grootboom had argued strongly that this was the governing norm, and therefore that the court should order the state to redirect its spending so as to devote all available resources to meeting the needs of people in the position of the claimant community.

Clearly, the adoption of such an approach at the domestic level would have brought the Constitutional Court into direct confrontation with the political branches, since it would have required the court to substitute its own view of the needs that ought to be prioritized in the national housing programme for that of the legislature and the executive. Fortunately for the court, however, South Africa has not as yet ratified the International Covenant on Economic, Social and Cultural Rights.²¹ And, although section 39(2) of the final constitution obliges the Court to ‘consider international law’, it clearly does not oblige it to apply non-incorporated legal norms.²²

Taking full advan...

Table of contents

• Cover Page
• Books of Related Interest
• Title Page
• Copyright Page
• Introduction: The Accountability Function of the Courts in New Democracies
• Judicial Review in Developed Democracies
• How Some Reflections on the United States’ Experience May Inform African Efforts to Build Court Systems and the Rule of Law
• The Constitutional Court and Control of Presidential Extraordinary Powers in Colombia
• The Politics of Judicial Review in Chile in the Era of Democratic Transition, 1990–2002
• Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court
• The Accountability Function of the Courts in Tanzania and Zambia
• Renegotiating ‘Law and Order’: Judicial Reform and Citizen Responses in Post-war Guatemala
• Economic Reform and Judicial Governance in Brazil: Balancing Independence with Accountability
• In Search of a Democratic Justice—What Courts Should Not Do: Argentina, 1983–2002
• Lessons Learned and the Way Forward
• Abstracts
• List of Contributors