The Evolution of the Separation of Powers
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The Evolution of the Separation of Powers

Between the Global North and the Global South

Edited by David Bilchitz and David Landau

To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? Constitutions now often include newer forms of rights – such as socioeconomic and environmental rights – and are written with an explicitly transformative purpose. They also often reflect include new independent bodies such as human rights commissions and electoral tribunals whose position and function within the traditional structure is novel. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis. The chapters in this edited volume grapple with these shifts and the ways in which the doctrine of the separation of powers might respond to them. It also asks whether the shifts that are taking place are mostly a product of the constitutional systems of the global south, or instead reflect changes that run across most liberal democratic constitutional systems around the world.
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Chapter 7: The fourth branch: challenges and opportunities for a robust and meaningful role for South Africa’s State Institutions Supporting Democracy

Faraaz Mahomed

Abstract

South Africa’s State Institutions Supporting Democracy, commonly referred to as the Chapter 9s, play a number of roles that overlap significantly with those played by the executive, legislative and judicial branches of government. Dedicated to the entrenchment of good governance, these bodies exist independently from the traditional structures of government, designed to guard against acts of impunity and to foster balance in much the same way that the checks and balances system, derived from the doctrine of separation of powers, intends to. Given this functional interpretation, this chapter contends that the Chapter 9 institutions do constitute a “fourth branch”, and that there are significant potentialities for them to utilise this role to contribute to good governance. These opportunities are explored, looking at the judicial and quasi-judicial roles that many Chapter 9 institutions play, and suggesting that the practice of Alternative Dispute Resolution (ADR) is one means through which these institutions can contribute significantly. Opportunities also exist for the Chapter 9 institutions to be robust research, advisory and rights-promoting bodies, and these should be harnessed and strengthened as distinctive roles that have an important place in South Africa’s constitutional landscape. Ultimately, however, it is recognised that there remain significant challenges which impede the ability of these fourth branch institutions to contribute robustly and meaningfully to good governance, including a lack of clarity about their position; questions about the enforceability (or lack thereof) of their findings; a paralysing lack of resources; and intrinsic and extrinsic weakening or undermining of the Chapter 9 bodies, often for political purposes. This chapter suggests that these challenges will need to be overcome if the Chapter 9 institutions are to live up to their considerable potential as custodians of good governance in South Africa’s constitutional order.

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