Precautionary constitutionalism, representative democracy and political corruption

Abstract

The Constitutional Court has over the past several years intervened in a significant number of cases that set concrete rules for the manner in which the internal procedures of our representative branches should operate Once one overcomes anodyne expressions of the separation of powers doctrine, the departure from 'well established' understandings of the proper relationship between the judiciary and other branches in constitutional democracies begins to make sense in South Africa That said, our fundamental commitment to representative democracy and a 'separation of powers' should urge some caution when it comes to judicial intervention in the 'internal functioning' of the representative branches This article has put forward a 'democratic process' theory, which includes a specific case for 'representation-reinforcing review' aimed at promoting 'principal/ agent' accountability Given the deep commitment of the basic law to self-government in multiple forms, this theory holds that where self-dealing representatives: (a) fail to fulfil their custodial responsibilities for public resources on behalf of 'the people'; (b) engage in self-dealing; (c) are 'captured' by private interests; or (d) create corrupt patronage systems that threaten the entire democratic project, then the judiciary is well within its rights to impose binding legal constraints on the political process in order to secure accountability Of course, where accountability ends, and meddling starts, can sometimes be difficult to ascertain On several occasions the Court has failed to offer a persuasive argument for intervention in the internal processes of the representative branches of government But while the outcomes might appear jarring on a first read, this article shows that the Court's implicit recognition in recent cases of constitutional standards governing the relationship between representatives and voters (a 'principal/agent' relationship) in a representative democracy and the express principle of accountability in a constitutional state provides justification for the more troubling decisions reached and bright lines for future cases The case for democracyreinforcing review propounded here enables us to ascertain, as best as we can, when the rough and tumble of democratic politics-as a deep constitutional commitment-must be respected and when the democratic process has become so utterly dysfunctional and our representatives so remiss in the observance of their constitutional obligation of accountability to 'the people', that it renders our representative democracy 'representative' and 'democratic' in name only

Law and Mobilization against State Capture

“…64 Aiming at 'selfdealing' by elected public representatives that threatens the republican institutions of democratic self-government, Firoz Cachalia has found in recent decisions of the Constitutional Court a precautionary anti-corruption principle, justified on political process grounds. 65 The articulation and validation of such a principle by the highest court in the land can have significant encouraging impact on individuals and organisations within civil society. More generally, James Fowkes has theorized the crucial role of infrastructures -mechanisms for implementing judicial decisions -in the building of South Africa's constitution by the Constitutional Court.…”