Constitutional Courts as Democratic Consolidators: Insights from South Africa after 20 Years

Abstract

Twenty years after the end of apartheid, South Africa?s Constitutional Court is one of the few meaningfully independent public institutions in the country. While not wholly autonomous from politics, the Court has shown itself to be detached enough on occasion to hold the ruling African National Congress (ANC) to account. This article explores how the Court has come to play this role. It starts by identifying two contrasting currents in the literature on the conditions for independent judicial decision-making: one that emphasises the determining influence of contextual factors and another that stresses constitutional courts? capacity strategically to build their institutional power. The article then uses these two currents to suggest a qualified feedback-loop theory of the role of constitutional courts in processes of democratic consolidation. By carefully managing public perceptions of their appropriate role in national politics, the theory runs, constitutional courts may be able...