Separation of Powers and the Political Question Doctrine in South Africa: a Comparative Analysis
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SEPARATION OF POWERS AND THE POLITICAL QUESTION DOCTRINE IN SOUTH AFRICA: A COMPARATIVE ANALYSIS. By MTENDEWEKA OWEN MHANGO Submitted in accordance with the requirements for the degree of DOCTOR OF LAWS at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROFESSOR MATHEW CHUKS OKPALUBA JANUARY 2018 1 DECLARATION Name: Mtendeweka Owen Mhango_____________________________ Student number: 61270385_________________________________________________ Degree: Doctor of Laws_____________________________________________ Exact wording of the title of the dissertation or thesis as appearing on the copies submitted for examination: Separation of Powers and the Political Question Doctrine in South Africa: A Comparative Analysis. I declare that the above dissertation/thesis is my own work and that all the sources that I have used or quoted have been indicated and acknowledged by means of complete references. ________________________ _____________________ SIGNATURE DATE 2 Abstract 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. 3 Key terms Separation of powers; political question doctrine; judicial review; political questions; policy questions; classical political question doctrine; prudential political question doctrine; Constitutional Court; judiciary; executive. 4 Acknowledgements I would like to thank Chauta for giving me the strength and courage to embark on and complete this project. I owe a debt of gratitude to Professor Chuks Okpaluba first, for kindly agreeing to be my promoter; and second, for his kindness, patience and competence in supervising the study and also for challenging me during the course of the study. But for his guidance and very useful advice and comments, the results achieved in the study would have been impossible. Any imperfections in this study are entirely my own. I owe a debt of gratitude to Mwanakazi wane, my best friend, my sounding board, and colleague Professor Ntombizozuko Dyani-Mhango for her thoughts, criticisms, comments, support and encouragement during my study. She did everything to support me during the course of my study. I cannot thank her highly enough. In addition, I would also like to thank the following people: Professor Evance Kalula for his encouragement and pieces of advice over the years; Sanele Sibanda and Tshepo Madlingozi for allowing me to test my ideas with them and for scrutinising my ideas; former Chief Justice Ngcobo for his insightful thoughts about the subject matter, which helped to shape some of my thoughts in this study; Professor Mark Tushnet for welcoming me at Harvard University in 2015, and for inspiring my thoughts on the subject of my study and for sharing some insights that assisted me in this study; Ms Maggie Lediga, Law Librarian, University of the Witwatersrand, for assisting me when I had difficulties accessing Westlaw; Ms Hafiza Wadee for her assistance during my research; My uncle Mr Mordecai Msisha SC for inspiring me at a young age to study law and for encouraging me to pursue excellence; Mr Sipho Mahamba for his friendship and support; Professor Shaheeda Mohamed for her friendship and encouragement; Professor Vinodh Jaichand for his encouragement; Mr Thabo Thipa for his friendship and support; Mrs Vicky Okpaluba for her support and valuable contribution; and all those who, in one way or the other, assisted me to pursue this study. Finally, I would also like to thank most sincerely my family: my parents, Chief Kambutu Ganje Mhango and Mrs Jean Kalinga-Mhango, my sons Tapokelera Mhango and Takondwa “TK” Mhango for their constant inspiration and encouragement for my success in this study. 5 List of Abbreviations Constitution 1996 Constitution of the Republic of South Africa, 1996 GFIP Gauteng Freeway Improvement Project GLR Ghana Law Reports GLRD Ghana Law Reports Digest NYU J Int’l L & Pol New York University Journal of International Law and Policy NWLR Nigerian Weekly Law Reports SA South African Law Reports SC Nigeria Supreme Court Law Reports SCA Supreme Court of Appeal of South Africa SCGLR Supreme Court of Ghana Law Reports TSAR Journal of South African Law US United States Law Reports US Supreme Court United States Supreme Court 6 Table of contents Declaration ………………………………………………..……………………………..… 2 Abstract ………………………………………...……………………………………………3 Key terms ………………………………………...………………………………………….4 Acknowledgements ………………………………………………….………………..……5 List of abbreviations ……………………………………………………………………......6 CHAPTER ONE: INTRODUCTION AND CONCEPTUAL OVERVIEW OF THE STUDY……………………………………………………………………………………...11 1.1 Introduction ………………………..…………………………………………….....11 1.2 Theoretical framework…………………………….……………………………....19 1.2.1 Meaning of classical political question theory ……………………………….....19 1.2.2 Meaning of prudential political question theory……..…………………..………20 1.2.3 Separation of powers ………………………………………………………..……21 1.2.4 Judicial review………………………………………………………..……….……24 1.3 Existing literature on the political question doctrine……………………..…..…37 1.4 Significance and originality of the study….……………………………….……..41 1.5 Research questions and objectives ……………………………………………..45 1.6 Methodology of the study …………………………………………………..…….46 1.7 Synopsis of chapters of the study …………………………………………….…47 CHAPTER TWO: THE GENESIS OF THE POLITICAL QUESTION DOCTRINE AND MODERN APPLICATION IN THE UNITED STATES……..……………….…...50 2.1 Introduction………………………………………….…………………………..….50 2.2 Early application of the classical political question doctrine………………......50 2.3 Early application of the prudential political question doctrine ………….…..…60 2.4 Survey of US Supreme Court cases applying the political question doctrine post Baker v Carr ………………………………….………………………………64 2.4.1 Powell v McCormack ……………………………….…………………………….64 2.4.2 Gilligan v Morgan…………………………………..……………………………....66 2.4.3 Nixon v United States ……………………………..…………………………..….67 7 2.5 A survey of federal courts’ application of the political question doctrine……………………………………………………………………..……… 71 2.6 A survey of the application of the political question doctrine by states………………………………………………………………………...….…. 77 2.6.1 In which areas is the political question doctrine applied by states courts?………………………………………………………...…………………... 79 2.6.1.1 Involving coordinate branches…………………………………………………..79 2.6.1.2 Election matters ……….…………………….……………………………………84 2.7 What is left of the political question doctrine? Zivotofsky v Clinton…………..86 2.8 Conclusion…………………………………………………………………….…....95 CHAPTER THREE: THE APPLICATION AND EVOLUTION OF THE POLITICAL QUESTION DOCTRINE IN GHANA…………………………………………………….97 3.1 Introduction………………………………………………………………………..97 3.2 The application of the political question ……..…………………………………98 3.3 A legislative decision to declare a public holiday ....................……………..101 3.4 The appointment of a chief justice …………………………………………….104 3.5 Dismissal of a cabinet minister…………………………………………..…..…108 3.6 A legislative decision to retain a member of parliament ………………...….114 3.7 The justiciability of directive principles and state policy……….………….…116 3.8 Conclusion…..……………………………………………………………….……124 CHAPTER FOUR: THE APPLICATION AND EVOLUTION OF THE POLITICAL QUESTION DOCTRINE IN UGANDA …………………….…………………….…….126 4.1 Introduction…………………………………………………………………………126 4.2 Constitution- making …………………………………….. …………..…………126 4.3 Are military matters political questions?………..………..…………….………135 4.3.1 Supreme court’s view…………………………….......…………………….……135