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oa Constitutional Court Review - Kindred strangers : why has the Constitutional Court of South Africa never cited the African Court on Human and Peoples’ Rights?

Volume 9 Number 1
  • ISSN : 2073-6215
  • E-ISSN: 2521-5183

 

Abstract

Why has the Constitutional Court of South Africa never cited the African Court on Human and Peoples’ Rights? The two courts appear to be natural allies, having both elaborated a robust jurisprudence promoting civil-political and socio-economic rights, accountability, political participation, and good governance. However, despite the African Court having issued a raft of landmark merits judgments since June 2013, the Constitutional Court has yet to cite its jurisprudence. This article attempts to account for this apparent lacuna in South African case-law, placing it against the Constitutional Court’s overall approach to citing international law and courts, and suggesting a range of possible explanatory factors, including: the state’s position as a ‘reluctant regionalist’; institutional factors (such as the Constitutional Court’s possible preference to retain constitutional supremacy and adjudicative autonomy, and tendency to more readily cite non-African jurisprudence); and broader structural factors (such as a lack of citations in submissions to the Court). It is argued that this matters for two reasons. First, it may possibly deprive the Constitutional Court of sources that could enrich its jurisprudence and anchor it in the developing regional human rights system. Second, as perhaps the two most important courts on the entire continent as regards rights protection, it seems desirable that the relationship between the Constitutional Court and the African Court should be developed and deepened – which does not mean they will always agree.

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/content/journal/10520/EJC-19f4b699ad
2019-12-01
2020-09-24

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