Accountability and the Role of Independent Constitutional Institutions in South Africa's Post-Apartheid Constitutions

29 Pages Posted: 29 Mar 2015 Last revised: 27 Apr 2016

See all articles by Heinz Klug

Heinz Klug

University of Wisconsin Law School ; University of Wisconsin - Madison

Date Written: March 27, 2015

Abstract

South Africa's post-apartheid constitutional order is characterized by an abiding tension, between a popular, democratically elected, ruling party – the political system might best be described as a unipolar democracy – and a constitutional promise of democratic accountability. Structurally the question of accountability is straddled between parliament, which bears the traditional legislative role of overseeing the executive in addition to law-making, and a range of independent institutions that emerged from the particular history of South Africa's democratic transition. Furthermore, as a constitutional democracy the courts, and the Constitutional Court in particular, are charged with determining the allocation of constitutional authority and resolving conflicts that might be brought to the courts as different institutions struggle to ensure that there is legal accountability for governmental failures as well as individual malfeasance. This article explores the relationship between democracy and accountability in this particular context and argues that what is significant here is the attempt to institutionalize a system of checks and balances that neither relies on a strict or formal separation of powers nor does it fragment power to the extent that paralyzes governance. Instead, it seeks to provide a constitutional system of governance in which there are multiple sites of power and authority to which political and social groups in conflict may repeatedly turn in their attempts to be both heard and to protect their interests or achieve their often irreconcilable goals.

Keywords: South Africa Constitution, Accountability, Separation of Powers, Public Protector, Ombudsman, Chapter 9 Institutions, Implementation, Corruption, Comparative Law

JEL Classification: K42

Suggested Citation

Klug, Heinz, Accountability and the Role of Independent Constitutional Institutions in South Africa's Post-Apartheid Constitutions (March 27, 2015). 60 N.Y.L. Sch. L. Rev. 153 (2015-2016), Univ. of Wisconsin Legal Studies Research Paper No. 1346, Available at SSRN: https://ssrn.com/abstract=2586167

Heinz Klug (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

University of Wisconsin - Madison ( email )

716 Langdon Street
Madison, WI 53706-1481
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
279
Abstract Views
1,396
Rank
199,434
PlumX Metrics