The ‘Juridification’ of Politics in South Africa: How the Constitutional Court Shapes and Constrains the Political Process
Zwelethu Jolobe (University of Cape Town)
[N]o skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces—the legislative, executive, and judiciary. … Questions daily occur in the course of practice which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science.
James Madison, Federalist Paper No. 37 (1788 [1987], p. 244)
To view the South African Constitutional Court (ZACC) simply as a legal institution is to underestimate its significance in the political system. For it is also a political institution i.e., for arriving at decisions on controversial political questions of national policy. Significantly, the development of the principle of legality as a broad ground for review of exercises of government power has given the ZACC a wider mandate with significant political implications. The resultant increased turn to litigation to tackle controversial political matters has laid bare the day-to-day workings of the government in court, with South Africa’s political life increasingly finding its way into the court’s judgements. The ZACC has thus become the principal arena of South Africa’s epic political contestations, and an important forum for defining the very nature of the body politic.
Is the increasing use of law as a medium to tackle political issues detrimental to the legitimacy of political processes? Specifically, is ‘juridification’ (i.e., “relying on legal process and legal arguments, using legal language, substituting or replacing ordinary politics with judicial decisions and legal formality”) constraining the political process? Through a discussion of relevant ZACC cases surrounding the actions of the executive branch, this article will show that juridification has given life to a new form of political contestation in South Africa, transforming the political process. After all, it is politics itself that calls on the judiciary to take care of traditionally political issues. By framing litigation, courts and judicial decision-making in political terms, the article will show that juridification is more a political than a legal process, and in so doing, bring law into the mainstream study of South African politics.