Concordia University School of Law, Faculty Scholarship

Document Type

Article

Publication Date

2009

Abstract

Achieving political stability in a transitional democracy is a fundamental goal, the resoluteness of which is in part maintained by courts of judicial review that are independent from political bias and devoid of deference to traditionally more powerful branches of government. The recent democratic transitions occurring in the African nations of South Africa and Uganda provide a unique, contemporary insight into the formation of a constitutional jurisprudence. This study is an examination of pivotal cases decided by the Constitutional Courts of South Africa and Uganda, the roles that these decisions play in political stability, and the potential for political bias in the interpretation of a newborn constitution. Topical cases include S v. Makwanyane and Another (1995) and Attorney General v. Susan Kigula and 417 others (2009) - decisions of the Constitutional Court of South Africa and the Supreme Court of Uganda, respectively - which contemplate the constitutionality of the death penalty. Though the judiciaries of both countries resist the influence of outside bias admirably, they do so with varying degrees of success. Notably, courts in Uganda have at times taken recourse to foreign law as a guide and given unctuous consideration to constitutional arguments but ultimately decided cases in strong consideration of executive will. Conversely, decisions in South Africa have sometimes taken the opposite route, disregarding political bias in favor of political stability. The cases and analyses herein are indicative of the fragile balances that each of these emerging democracies must strike in order to ensure the continuance of their newly formed constitutional governments. [excerpt]

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