OpenUCT :: Browsing by Author "Corder, Hugh"

Browsing by Author "Corder, Hugh"

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Open Access
A century worth celebrating
(2010) Corder, Hugh
It is understandable that no great fuss has been made of the hundredth anniversary of the establishment of South Africa as a nation state within its current borders (through the South Africa Act 9 Edw VII, ch 9). The Act of Union, after all, while it represented a triumph for those arguing for the formal reconciliation of ‘Boer and Brit’, marked much more negatively the exclusion of the majority of the new country’s population from any effective say in the institutions of government. Not only were the proponents of federalism, which might have allowed the less conservative leadership in the Cape Colony to retain a degree of autonomy through which to pursue government based on individual worth, soundly defeated, but the elements of non-racial government preserved in the Cape franchise arrangements (and to a lesser extent, those of Natal) were seen as provisions to be protected as a dying species, rather than as bridgeheads for their expansion more widely within the Union
Open Access
Advancing the girl child movement: a potential mechanism to curtail sexual gender-based violence against women in South Africa
(2019) Burn, Jessica Ashley; Corder, Hugh
Violence against women is not a social ill which has recently emerged, nor is it an unexplored topic in the realm of feminist academics, activists and lawyers. Yet despite streams of published articles unpacking the issue and numerous campaigns aimed at raising awareness about and combatting the prevalence of violence against women, it continues to be deeply entrenched in all factions of society. Furthermore, the idealistic society envisioned by the Constitution of the Republic of South Africa, 1996 has not translated into reality and the rights enshrined in the supreme law have not dissipated incidents of violence against women. With the aforesaid in mind, this paper intends to contribute to the array of solutions already developed, in order to assist in countering the most extreme manifestation of patriarchy, sexual gender-based violence against women.1 As the time-honoured saying goes, ‘prevention is better than cure’ and in the same vein, a total reliance on the legislation and the legal processes in place to deal with the aftermath of rape, sexual assault and harassment, arguably have not and will not adequately address the root causes of these crimes. Hence, this paper contemplates a mechanism to strike at the core from which sexual gender-based violence stems, that core being the psychological entrenchment of male superiority and female inferiority - in other words, gender inequality. Overlooked prejudices against girls and women need to be brought into consciousness, to address them and break them down. If gender equality is sought, then we should be encouraging children to evaluate the status quo from a younger age and prioritise their role in re-imagining a society which values and promotes equality and dignity. Accordingly, it is submitted that a potential solution may lie in children’s human rights education (HRE), specifically aimed at promoting gender equality and deconstructing patriarchal beliefs and ideas about masculinity. HRE is not a novel concept and is promoted in international treaties such as the Universal Declaration of Human Rights (UDHR) and the Convention on the Rights of the Child (Child Convention), and has, in fact, already been implemented in schools in South Africa in order for the post-apartheid generation of children to strive towards racial integration and societal transformation. Unfortunately, it appears that the goal of gender equality has fallen somewhat to the wayside in the formulation of these HRE programmes. It is submitted that the UDHR and the Child Convention read together with the Convention on the Elimination of All Forms of Discrimination Against Women and the Declaration on the Elimination of Violence against Women, as well at the African (Banjul) Charter on Human and Peoples’ Rights and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, support the advancement of gender equality through HRE programmes. In order to explore the possibility of developing HRE programmes in schools throughout South Africa with an underlying goal of advancing gender equality, empirical research was conducted in collaboration with the non-governmental organisation, Children’s Resource Centre, based in Cape Town, which has developed a programme called the Girl Child Movement (GCM). The GCM aims to use the creative energies of girls to help build and sustain a qualitatively better world for girls and women. The goal of advancing the GCM is acutely targeted towards preventing the pain, suffering, humiliation and dehumanisation of girls and women who are subjected to incidents of sexual gender-based violence, the war on female bodies.
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An analysis of how Zimbabwe’s international legal obligation to achieve the realisation of the right of access to adequate housing, can be enforced in domestic courts as a constitutional right, notwithstanding the absence of a specific constitutional right of every person to have access to adequate housing
(2018) Mavedzenge, Justice Alfred; de Vos, Pierre; Corder, Hugh
The Constitution of Zimbabwe of 2013 does not expressly guarantee every person a right to have access to adequate housing. However, the Government of Zimbabwe has an international legal obligation to achieve the progressive realisation of the right to have access to adequate housing by everyone in the country. This obligation is derived from art 11 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Zimbabwe is a dualist state and therefore, this obligation is not directly or automatically enforceable as municipal law in Zimbabwe. It can be enforced in domestic courts only if it has been enacted into legislation or if it is entrenched as a constitutional obligation. The absence of a specific constitutional right, guaranteed for everyone to have access to adequate housing, thus raises the concern that the government may not be held accountable, in the domestic courts, to comply with its international legal obligation to ensure that everyone enjoys access to adequate housing. There is a national housing crisis in Zimbabwe that is characterised by an acute shortage of adequate housing, mass forced evictions and unfair discrimination in the allocation of housing facilities by government. There is therefore an existing need to compel government to comply with and fulfil its international legal obligations relating to the right of every person to have access to adequate housing. In the absence of an explicit constitutional guarantee of such a right, it is necessary to find alternative constitutional rights which citizens and individuals in Zimbabwe can rely on to compel Government to comply with and fulfil its international legal obligations that arise from art 11 (1) of the ICESCR. The Constitution of Zimbabwe expressly guarantees for everyone the following rights; the fundamental freedom from arbitrary evictions, the right to life, the right to equality and the children’s right to shelter. The scope of each of these rights can be interpreted broadly to include some of the duties that ordinarily arise from the right to have access to adequate housing. Therefore, these rights can be applied together to enforce the international legal duty of the state to ensure the progressive realisation of the right to have access to adequate housing by everyone in Zimbabwe.
Open Access
The application and reconstruction of international law by domestic courts : an analytical framework for the judicial mediation of a cosmopolitan and emancipatory international law
(2013) Lewis, Lizani; Bennett, Thomas; Corder, Hugh; De Vos, Pierre
The end-goal of this study is to promote a bottom up reconstruction of international law. This implies, first, that reconstruction is necessary, and, second, that such reconstruction has substantive merit. As humanity heads into the future in 'Lifeboat Earth', a number of global storms are brewing, ranging from catastrophic environmental degradation to an economic meltdown and political instability, accompanied by grave human suffering – all of which can be addressed only through ecumenical cooperation at a global level. This, in turn, presupposes a global system of regulation. Thus far, the only regime available has been international law. Hence, it is imperative that it is (or becomes) justifiable, persuasive and relevant for all its participants and recipients. The study construes this to mean that international law must be cosmopolitan, that is, globally relevant and counter-hegemonic, and thereby emancipatory, which signifies a normative order wherein human potential can flourish.
Open Access
Are the current Zambian constitutional provisions sufficient in preventing abuse of power by the executive organ of government?
(2015) Daka, Fridah Malindima; Corder, Hugh
This paper discusses reasons why democratic governance cannot be attained by the Zambian government without deliberate commitment to the maintenance of values and principles of democracy, good governance and the rule of law. Zambia prides itself to be a democratic and peaceful country. However, accountability, openness and responsiveness to the needs of citizens has been a challenge despite this great record, which has come as a result of free, fair and peaceful elections recorded consecutively since Zambia became a multi-party democracy. The partial fusion of the Executive and Legislative organs of government ably qualified by provisions of the current Constitution, makes it difficult to hold government accountable by the governed. Consequently, presidential appointment of Cabinet Ministers from Parliament equally weakens legislative ability of checking and balancing powers of the Executive. Moreover, appointment of judges by the President is another factor that punches holes in judicial independence and injures the last line of defence. It is as such imperative that the colossal presidential powers are reduced to allow a flourishing democratic society. In the view that the current Constitution does not have adequate provisions to prevent abuse of power by the Executive; this thesis has made recommendations for the Constitution to be amended to provide effective ways of balancing power between the three arms of government. This will inevitably create an environment of mutual accountability in government and construct a platform where the electorate could question irregular administrative actions.
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Assessing public-private-partnerships in South Africa and how administrative law should respond
(2018) Zondi, Nokulunga; Corder, Hugh
In today’s highly globalized and technological societies, it has become more difficult for public entities to maintain high quality public services, especially given recent ecological concerns. Thus, many public entities have turned to privatisation, promising to maintain public service with the efficiency of private companies and markets. Nonetheless, there are clear drawbacks to privatisation, such as the promised public services being drowned out in favour of more profitable schemes. The compromise, here, is the ascension of public-private-partnerships (PPPs), which are agreements in which private entities are bound to maintain certain public services while taking ownership, in limited form, of public property. The concerns of relying on PPPs for utility services are explored in this dissertation. In particular, the case of Eskom taking control of electricity provision in South Africa through a PPP is assessed in the context of a similar arrangement in Germany. It is the conclusion of this dissertation that if administrative law is not responsive to the threats to the impoverished populations in South Africa not having access to electricity, then an infringement of fundamental human rights may occur.
Open Access
Bias in administrative decision making: focusing on local government
(1997) Smit, Henrietta Augusta; Corder, Hugh
The Centre for Local Government Training, Western Cape, has been running a training/orientation programme for local government councillors since the beginning of 1996. ' As part of this programme, I have had the opportunity to conduct the training of a basic module on local government and administrative law for several transitional local councils. From the numerous questions asked in this regard, it soon became clear that many councillors were uncertain as to when they had to recuse themselves from council meetings on the grounds of bias, or a possibility of bias. Not surprisingly, as the test for bias in non-judicial administrative decision making is far from clear, even to lawyers, many councillors appeared to have difficulty in applying the test to their personal circumstances. It is hoped that this dissertation, in shortened and simplified form, can serve as a practical guide to councillors in this regard. After all, prevention is better than cure, and any unnecessary court proceedings that can be avoided, will be saving the ratepayers thousands of rands. At the outset, the rules of natural justice will be briefly discussed, as well as section 33 of the Constitution of the Republic of South Africa, no 108 of 1996. This will be followed by a detailed discussion of the rule against bias: including the test to be applied; the grounds for the appearance of disqualifying bias illustrated by a discussion of case law; the issue of departmental bias; the consequences of impermissible bias; and the doctrine of necessity. The focus will then move to local government, and the relevant legislation as expounded by the courts. Finally, the consequences of a biased decision in local government will be looked at, and the constitutionality of certain sections of the local government ordinances questioned.
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The burgeoning constitutional requirement of rationality and separation of powers has rationality review gone too far?
(2013) Kohn, Lauren Manon; Corder, Hugh; De Vos, Pierre
This thesis presents an analysis of three recent judgments of our apex courts which collectively illustrate a maximising of the 'minimum threshold requirement' of rationality through the seemingly inexhaustible constitutional principle of legality. The question sought to be addressed is whether, in extending this baseline requirement to cover procedural fairness, reason-giving and something akin to proportionality, in the context of non-administrative action and in the absence of any meaningful engagement with the doctrine of separation of powers, the courts are going too far.
Open Access
Corporate actions and the empowerment of non-shareholder constituencies
(2015) Mongalo, Tshepo Herbert; Davis, Dennis; Corder, Hugh
Corporate law developments concerning the empowerment of non-shareholder constituencies in Anglo-American jurisdictions of the United States of America and the United Kingdom since the 1980s have been of very limited utility. Available literature and legal authorities in both those jurisdictions clearly illustrate the obsession of policy makers and the judiciary with normative statements of directorial responsibilities to non-shareholder constituencies without introducing the necessary and complimentary right of action for those constituencies. The reluctance to introduce such right of action appears to be motivated by the exaggerated fear of the potential for 'floodgates' of litigation. This reluctance to extend corporate law remedies to non-shareholder constituencies, particularly in public companies, clearly overlooks the importance of the supervision of the use of corporate power to minimize or eradicate directorial self-serving misconduct, rather than the exclusive protection of shareholders, as the primary purpose of corporate law remedies. The introduction of an extended corporate legal enforcement framework under the South African Companies Act of 2008 may be indicative of the feasibility of the right of action for non-shareholder constituencies. Since the applicable enforcement regime in corporate law is a function of the applicable normative theory, a broadly inclusive corporate legal enforcement framework cannot be based on the conventional shareholder-oriented theories of 'Shareholder Primacy Norm and 'the Enlightened Shareholder Value Approach.' It is, therefore, argued that the South African Companies Act, 2008, introduces the Actionable Enlightened Shareholder Value Approach which invariably necessitates, among other things, the extended meaning of 'the best interests of the company' as provided for under s 76(3)(b) of the Act. The Actionable Enlightened Shareholder Value Approach recognises that the primary purpose of corporate law remedies is not the exclusive protection of shareholders, but the supervision of the use of corporate power to minimize or prohibit directorial self-serving misconduct, which purpose benefits a broad range of corporate constituencies. That is why the legal enforcement framework under the South African Companies Act facilitates the empowerment of corporate constituencies beyond just shareholders; ensures the availability of broad range of remedies; gives the opportunity for corporate constituencies to apply for remedies in the public interest, with leave of the court; recognises that the protection of the company's legal interests can be undertaken by a broad range of corporate constituencies and, also generally, with leave of the court; and facilitates the ability to hold any person liable for loss or damage suffered as a result of the contravention of any provision of the Act by that person.
Open Access
A critical examination of overreach in judicial decision-making by the Constitutional Court of South Africa
(2014) Glam, Leroy; Corder, Hugh
Open Access
Does the lack of sufficient formulation and articulation of principles guiding the limits of the Constitutional Court undermine its legitimacy?
(2014) Naidoo, Sherilyn Shale; Corder, Hugh
It is not simply enough to have a separation of powers written on paper. In this paper I shall look at the pragmatic approach adopted by the Constitutional Court when adjudicating upon executive and legislative power in order to ensure its institutional security and legitimacy. I shall evaluate throughout this paper how the lack of sufficiently and consistently formulating and articulating principles that guide the Constitutional Court’s own limits could actually undermine the Court’s legitimacy in our current political climate.
Open Access
Fashioning judicial remedies that work in a constitutional society – Establishing a framework for a functional approach to the awarding of constitutional damages in South African law and comparative jurisdictions
(2019) Kika, Musa; Corder, Hugh
The propriety of awarding constitutional damages as appropriate relief in South Africa can be inferred from the discretionary ss 38 and 172(1) of the Constitution which empower the courts to ‘grant appropriate relief’ and to make ‘just and equitable orders’, respectively. These damages are claimable against the State for Bill of Rights infringements as opposed to private individuals or juristic entities. In spite of the remedy’s promise, the jurisprudence of the Constitutional Court (‘CC’) has not been particularly encouraging, with clear guidance on the granting of the remedy still at large. There is a challenge of acceptance of the remedy as part of South African law, and the problem of approach and process. Unsurprisingly, the courts have sought refuge in treading with extreme circumspection, and have approached the remedy in a circumstantial and ad hoc manner. A hybrid and functional approach which is tailor-made and purpose-oriented would help do away with a formalistic approach that has stunted the growth of constitutional damages as a remedy in South African law. This would eliminate elevating form over substance, subordinating constitutional vindication to common law or statutory remedies, and subjecting constitutional rights violations to indirect as opposed to direct constitutional remedy. What must be looked at is the breach that has occurred, the ‘mischief’ that needs to be corrected, and the impact that such correction is intended to have. This would mean that there are instances where constitutional damages would remain appropriate despite the existence of a remedy in common law. This will inevitably involve departing from the archaic approach to remedies, to think in terms of a closed category of ‘tried-and-tested’ remedies. In determining quantum, the comparable common law measure of damages will often be a useful guide, but only to that extent. It is for the courts to make an award which reflects what a court considers to be fair and just under the circumstances. These are the hallmarks of a functional and pragmatic approach that South African courts and those of comparative democracies ought to adopt.
Open Access
Financing infrastructure at multilateral development banks: global administrative law and accountability reforms in infrastructure project financing in the BRICS bloc
(2021) Caswell, Grant Sinclair; Corder, Hugh
One of the hallmarks of the last decade has undoubtedly been the rise to prominence of a group of five emerging economies – Brazil, Russia, India, China and South Africa - that have come to be known collectively as the ‘BRICS bloc'. As a direct result of the increasingly prominent role of the BRICS bloc in global politics and economics, there has been a consequent increasing demand for improved infrastructure within these rapidly industrialising powers. This has compelled multilateral development banks to develop innovative funding solutions. Among these mechanisms is project finance, a relatively novel legal and financial structure typically used to fund public and private capital-intensive facilities and utilities. Multilateral development banks' (MDBs) participation in large-scale public-sector infrastructure projects financing is primarily governed by the loan agreements they conclude with governments, other financial institutions, and private sector entities. However, projects of this nature have predictably widespread effects, particularly on stakeholders not party to the contractual scheme – they frequently involve resettlement of local populations, transformation of indigenous lands, deforestation, pollution, and employment of labour for heavy industrial tasks. This far-reaching impact has necessitated increased accountability for MDBs' financing practices, particularly where the actions of MBD lenders impact on human rights and have broader social and environmental effects. This thesis examines two mechanisms to achieve accountability. The first of these solutions lifts the veil and entails reconceptualisation of how MDBs are held accountable at domestic level by reconfiguring the role of domestic judicial forums. The second is the formation of what is termed an independent ‘super mechanism', an international body which would be created by agreement among all participating multilateral development banks and would serve to provide effective oversight and enhanced accountability. This thesis ultimately focuses on advancing a novel contribution on the establishment of a super mechanism and it does so with reference to the interface between global administrative law principles and domestic administrative law principles. It addresses how supranational regulatory mechanisms should render the exercise of discretion and authority at the international level more transparent and accountable for the benefit of stakeholders in the developing world. The thesis formulates four benchmark criteria against which the development of an effective and successful super mechanism should be measured, it should: (i) be empowered with jurisdiction to conduct comprehensive investigations; (ii) provide remedies that are effective; (iii) be empowered to monitor and enforce remedies and corrective measures at MDBs; and (iv) operate in a manner that does not directly or indirectly contribute to undermining the national sovereignty of developing states. The thesis takes this further by examining how a super mechanism aligns with the core objectives and values of the BRICS bloc, and then advances a proposal to establish a BRICS super mechanism. It does this with reference to the practical challenges that may arise around the implementation of a BRICS-specific super mechanism, and it interrogates measures that the bloc has already implemented that may mitigate some of the theorised challenges.
Open Access
The impact of judicial control on the public administration of the environment : 1995 to 2007
(2011) Hall, Jennifer Helen; Corder, Hugh; Simons, Mary
This thesis sets out the findings of an empirical study on three environmental departments' responses to judicial regulation during the first fifteen years of democracy.
Open Access
Independent and effective adjudication in the lower courts of South Africa
(2023) Rawheath, Pawranavilla; Corder, Hugh; De, Vos Pierre
Most dispute resolution in South Africa takes place in the lower courts, mainly the Magistrates' Courts (MCs), and they therefore constitute the foundation upon which the country's administration of justice rests. Indeed, since the establishment of a constitutional democracy in South Africa and the declaration of MCs as independent, the lower courts constitute the largest component of the judiciary and the institution where most people seek the protection of the rule of law. Although the critical importance of the work of MCs in communities is common knowledge, very little attention has been given to the subject of lower court dispute resolution in the jurisprudence and the scholarly literature. Under the circumstances, the discourse about judicial independence and courts' effectiveness is situated in a judicial system in which MCs do not feature. Several related explanations may be given for the absence of lower courts from these debates, not least of which is the pre – constitutional historical location of MCs within the executive of a state where an illegitimate Parliament was sovereign. Yet, given the rather obvious present importance of the lower courts in the judicial system, there is a need to draw them to the centre of the debate. This shift is especially important considering the enormous challenges which confront lower courts to effectively adjudicate disputes in high volumes and varied in nature and complexity. When the work of MCs is raised in discussions about the judiciary, commentary is invariably negative in tone especially with reference to the poor quality of judicial decisions and the inefficiency that plagues the judicial system at lower court level. Criticisms of this kind are not unjustifiable but serve little purpose unless they lead to the identification of the root causes, the ways to resolve them and importantly, appropriate remedial action by the responsible institutions. The transformational vision of the Constitution calls for all state organs to support the courts to adjudicate the vast and varied disputes, claims and charges impartially, independently and effectively. However, the veritable invisibility of the issues and challenges that confront MCs in the prevailing discourse may have enabled the responsible entities to neglect it. As a consequence, MCs have continued to function as they did in the pre – constitutional era: still mainly under the governance and management of the executive and in a position of inferiority. As the notion of impartiality and the characterisation of all courts as independent are central to dispute resolution, the issues arising from the debates constitute the core subject matter this thesis traverses. This thesis posits the view that the prolonged, degraded status of lower courts may continue to weaken the public confidence in these courts and may imperil the legitimacy of the judiciary as a whole in the long term.
Open Access
'Is little to be gained by lamenting the past?' : Assessing the extent to which addressing the past legacy of the South African and Kenyan judiciaries by means of transitional justice mechanisms, has contributed to achieving the objectives of judicia
(2014) Boast, Jessica; Corder, Hugh
The purpose of this dissertation is to determine whether it is important for the future development of legal systems in post-authoritarian or post-conflict states to confront the unjust past legacy of their judiciaries. In order to determine this, one has to assess the extent to which addressing the unjust past legacy of such judiciaries, by means of transitional justice mechanisms, has contributed to achieving the objectives of judicial reform is these contexts. This is accomplished by firstly, analysing the contribution of the TRC Legal Hearing to judicial reform in post-Apartheid South Africa. Secondly, the contribution which the vetting of the Kenyan judiciary made to achieving judicial reform in Kenya after the 2007 Election crisis is assessed. In both circumstances, the final contributions of these transitional justice mechanisms to achieving the objectives of judicial reform are weighed against the contributions of other mechanisms. It is argued that both the transitional justice mechanisms of truth commissions and judicial vetting contributed to achieving objectives of judicial reform in South Africa and Kenya. However, the extent of the contributions differed in each case because of unique political factors. It is concluded that confronting the unjust past legacy of judiciaries in post-authoritarian and post-conflict states is indeed important for the future development of their legal systems.
Open Access
The judicial discretion to allow unlawful government procurement awards to stand: justification and implications for the principle of legality and the rule of law
(2015) Jones, Michael; Corder, Hugh; Naudé, Tjakie
The development of subjecting government procurement awards to judicial review is a relatively recent development in South African law. It accords with a similar development in the United States, as well as South Africa's own constitutional requirements of transparency and public accountability. Given the often lucrative nature of public contracts, challenges to the lawfulness of government procurement awards have become a regular occurrence in South Africa. However, the setting aside of such an award does not automatically follow upon a finding of unlawfulness. For a number of reasons, a court may decline to set aside an unlawful government procurement award. This raises a number of interesting questions, particularly with regard to how such a decision may be reconciled with, and the implications this may have for, the principle of legality and the Rule of Law. This dissertation will address these issues, arguing that, ultimately, the concerns are resolved by appreciating the nature of the principle of legality, and the Rule of Law's place as a value in society.
Open Access
Judicial regulation of administrative policies that influence the exercise of statutory discretions
(2016) Adderley, Megan; Corder, Hugh
This paper argues that, in light of the prevalence of administrative policies, the normative force they carry and the reliance placed upon them by the public, there is a need for the courts to develop the law regulating the way that administrators use policy to structure and guide the exercise of their statutory discretions. It will be argued that such developments would give effect to both the 'controlling' and the 'facilitating' objectives that underpin administrative law, and, would strike an appropriate balance between the competing values at play so as to foster good governance. First, the nature2of administrative policies, their rise as a regulatory tool of government and the growing administrative preference for policy over delegated legislation are explored. It is argued that there is a necessity for the courts to develop the law regulating the administrative use of policy to foster the democratic principle of accountability. The current legal principles regulating the use of administrative policies in a discretionary context, under the broad banner of the 'fettering by rigidity principle' are explored and assessed. It is argued that the fettering by rigidity principle has been applied in a nuanced and variable way, and that it plays an important role in fostering good governance, particularly by promoting flexibility, responsiveness and participation, but does not go far enough in promoting the values of certainty, fairness and consistency. It is argued that a more appropriate balance between these values could be struck by developing a duty for administrators to apply policy consistently and only to depart for good reasons. Finally, it is argued that the principle of legitimate expectations should be developed to allow for substantive protection where an administrator unjustifiably frustrates the trust and reliance which individuals may have placed in an existing policy where that policy is subsequently replaced by a new one.
Open Access
Lawfare and legitimacy: The wicked problem of judicial resilience at a time of judicialisation of politics in South Africa
(2021) Dent, Kate; Corder, Hugh
In the period from 2009-2020, South Africa has witnessed the rise of "lawfare". Lawfare is understood as the judicialisation of politics - turning to the courts and the use of the law to resolve broadly political matters. This thesis explores the unfolding implications of the judicialisation of politics for judicial legitimacy. In the displacement of the political into the judicial the reach of the courts is expanded and the legitimacy of courts engaging in a "political" role is questioned. Situated in the field of judicial-political dynamics, the interplay between law and politics is observed through the adoption of a historical-institutionalist model. This thesis identifies the causes of the judicialisation of politics and then traces its consequences for broader constitutional stability and the impact on the judicial institution. Guidelines for the Court to navigate lawfare to achieve institutional resilience and maintain judicial legitimacy are then proposed. Judicialisation of politics is caused primarily through the failures of the other branches of government to fulfil their assigned constitutional role. Institutional imbalance in a dominant party democracy means that opposition parties and civil society organisations are left with little recourse but to appeal to the Court to be a constitutional bulwark. The Court is then compelled to step into the breach and fill the accountability vacuum. In identifying the causes of judicialisation, a fuller understanding of Lawfare emerges, expanding current scholarship beyond its traditionally abusive characterisation. It posits a duality to Lawfare in that it can be both an abuse of law and a last line of defence. Through observing the judicial political interactions, a trajectory from the judicialisation of politics to the politicisation of law is mapped. The politicisation of law sees political power refocused on the courts, exposing them to political aggression and attack by the dominant party. The judicialisation of politics that seeks accountability from recalcitrant political actors asks much of the courts, at a time when ensuring executive oversight is the most dangerous, because of the ease with which a hostile executive in a dominant party democracy can implement measures that may undermine the independence of the judiciary. The Constitutional Court has shown a remarkable ability to navigate this era of Lawfare, remaining resolute under fire. However, the more successful the Court is in holding the line against executive abuse of power, the more the judicial route is identified as a powerful weapon to achieve more abusive political objectives. The relationship between Lawfare and legitimacy is identified as a wicked problem that demands expanding boundaries to observe the courts influence on the political environment, and the political environment's influence on the judicial role and its legitimacy. Through advancing a multi-dimensional paradigm of judicial legitimacy, the dialectics of judicial legitimacy are shown to be aggravated by the judicialisation of politics. In this respect it is argued that where the foundations and assumptions on which legitimacy is predicated shift, legitimacy must be re-examined. It is therefore argued that in a culture marked by an impunified disregard of non-judicial regulatory enforcement and increasing non-compliance with judicial orders, the impulse to preserve legitimacy through a detached, formalist stance will not be sufficient. Judicial legitimacy must be relocated in the ability of the Court to be responsive. Pulled into the role of judicial statesmanship, the Court must adopt a robust approach to assertively uphold the rule of law. In tracking the unfolding consequences of the judicialisation of politics, the Court is asked to resolve matters beyond its institutional capabilities. Absent the normative commitment to the rule of law, the internationalisation of constitutional norms, and the political interest to implement remedial orders, the Court is unable to effect workable relief. In tracing the dangers of the continued trend of Lawfare, the thesis sketches a downward spiral of reputational strength of the Court and a decline in democratic responsibility. This leads to an inability to achieve effective reform that ends in disenchantment, questioning the faith placed in the Constitution. It depicts how the Constitutional Court as 'constitutional saviour' can unravel into constitutional blame. The Constitutional Court has been able to hold the line in this era of Lawfare and repel assaults on its integrity and efforts to undermine its independence. However, without a broader culture of commitment to the rule of law, civil education and a suffusion of constitutional responsibility beyond the judiciary, the Court will not be able to continue to shoulder the weight of what is asked of it. This research depicts a circular model of Lawfare and legitimacy, where Lawfare is predicated on judicial legitimacy, but an overreliance on Lawfare will destroy judicial legitimacy.
Open Access
Legal issues in the contextual diffusion of independent regulatory agencies in Nigeria
(2015) Andzenge, Terhemen; Corder, Hugh
In the last three decades, there has been a phenomenon, akin to a revolution sweeping through the world, leaving in its wake major consequences of economic, political, legal and constitutional dimensions. The role of the state as we know it has been reconstructed beyond recognition. From an all-encompassing monolith that owns, manages, and provides various infrastructures, goods and services directly to the public and also serves as a regulator, it has now been reduced to a mere bystander or an enabler. Its footprints in the sands of economic and political times have diminished. In its place has arisen the regulatory state, characterised by a thinning out of the state; and the emergence of an institutional innovation: the Independent Regulatory Agency. Its rise, growth and diffusion across jurisdictions and sectors, and most recently in developing countries including Nigeria have been unprecedented. This thesis centres on the question whether the Independent Regulatory Agency can function in Nigeria in a manner analogous to its counterparts in the developed economies and be able to ensure the provision of safe, affordable and efficient infrastructures and services. The thesis finds institutional fragility, limited capacity, information asymmetry, corruption and insecurity within critical political, economic and supporting institutions that ideally gives life and legitimacy to the IRA; while essential democratic concepts are adhered to more in the breach. These challenges present a difficult climate in which the Independent Regulatory Agency can thrive. As an alternative, the thesis advocates the adoption of two transitory regulatory models: regulatory contracts and contracting out or outsourcing of functions. Their utilisation would achieve the desired regulatory outcomes until maturity is attained in the political economy of Nigeria, while simultaneously mitigating its contextual limitations.