Constitutional limits on the application of the political question doctrine: a study of Kenya, South Africa and Ghana
Political branches are increasingly coming under the scrutiny of the judiciary under the now widely embraced principle of constitutional supremacy. What was a call to complete abstention in the face of political questions has been replaced with a call for the constitutional review of political questions as judges continue to embrace their guardianship role over the Constitution. The principle of constitutional supremacy allows judges to intrude into terrain hitherto reserved for political branches. Intrusions, by their very nature, can be disruptive and often result in claims of judicial overreach. Over time, the judiciary has been urged to exercise deference to cure the claim of overreaching. However, principled approaches have yet to be proffered to guide the institution in the deference to employ when reviewing political questions for their constitutionality. This study fills the gap by offering a principled approach to reviewing political questions for their constitutionality. It does this through a comparative study of three jurisdictions that have codified the principle of constitutional supremacy. The study reveals that intrusions are mandated by the Constitution itself, and it therefore also reveals the need to create a distinction between constitutionally permissible and impermissible intrusions. The study finds that a constitutionally permissible intrusion results when courts interpret their institutional authority and the text of the Constitution in a narrow manner that respects the constitutional power and discretion committed to political branches. In contrast, an impermissible intrusion results when courts interpret their institutional authority and the text of the Constitution in an expansive manner that disregards the constitutional power and discretion committed to political branches. The study makes three propositions as a cure to constitutionally impermissible intrusions; first, where a constitutional power has been committed to a political branch, and no discernable textual constraint on that power is evident in the text of the Constitution, judges must refrain from creating constraints foreign to the text of the Constitution as a basis for review. Secondly, when a textual interpretation of the Constitution reveals an absence of normative standards to guide a political branch in answering a constitutional question committed to it, the Constitution empowers political branches with the duty to supply normative standards, which are binding on the court. Third, where a political branch fails to supply normative standards to an indeterminate constitutional provision, the court should not take it upon itself to supply determinacy. Its role is to direct the political branch to develop a normative framework that supplies determinacy. The three propositions offer a more predictable and stable deferential approach to the constitutional review of political questions. Constitutionally impermissible intrusions are inherently undemocratic and sour relations between the judiciary and political branches. They arise when judges set aside fidelity to text in interpreting the Constitution and assume an interpretive role that defiles the Constitution they claim to uphold. Through the approach advanced in this study, judges will be equipped with a framework with which to hold political branches accountable in a manner that does not tread upon terrain inappropriate for judicial intervention.
Constitutional limits, Kenya, South Africa, Ghana
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