Constitutional limits on the application of the political question doctrine: a study of Kenya, South Africa and Ghana
type: CreativeWork
description: 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…
abstract: 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…
author: Ongudi, Ronald
language: en
keywords: Constitutional limits, Kenya, South Africa, Ghana
date published: 2025
date modified: 2026-07-22T22:23:45Z
provider: University of Cape Town
publisher: Networked Digital Library of Theses and Dissertations
type: WebPage
source organization: Department of Public Law

PropertyValue
property ID: Handle
value: http://hdl.handle.net/11427/41887