Section 34 of the Constitution of the Republic of South Africa, 1996 outlines the scope
of judicial authority as encompassing the resolution of any dispute that can be resolved
by the application of law. The courts in South Africa have developed several
justiciability canons that restrain when courts may adjudicate disputes, such as
standing, mootness, ripeness, and the prevention of advisory opinions. These
justiciability canons emanate from constitutional considerations such as respect for
separation of powers and the proper role and scope of judicial review in a constitutional
democracy.
This study focuses on another justiciability canon - the political question doctrine. This
doctrine arises from the principle of separation of powers and, in the main, provides
that certain questions of constitutional law are allocated to the discretion of the elected
branches of government for resolution. As a result, such questions are non-justiciable
and require the judiciary to abstain from deciding them because not doing so intrudes
into the functions of the elected branches of government. The underlying theme is that
such questions must find resolution in the political process.
Through a comparative lens, the study examines the origins and current application of
the political question doctrine in selected countries with a view to obtain lessons
therefrom. It examines the origins of the doctrine, by placing particular emphasis on
the early application of the doctrine by the US Supreme Court. The study also
examines the modern application of the doctrine in the constitutional jurisprudence of
several countries, including Ghana, Uganda and Nigeria. It advances the view that
while the doctrine exists in the South African jurisprudence, the Constitutional Court
should articulate and develop it into a clear doctrine taking into account lessons from
those countries. The study offers some recommendations in this regard.
The study submits that the political question doctrine is an appropriate legal
mechanism through which the South African judiciary can address the recent problem
of the proliferation of cases brought to the courts that raise non-justiciable political
questions and threaten to delegitimize the role of the courts in a democracy. / Public, Constitutional and International Law / LL. D.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/24238 |
| Date | 01 1900 |
| Creators | Mhango, Mtendeweka Owen |
| Contributors | Okpaluba, Mathew Chuks |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (310 leaves) |
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