Research Publications (Management Sciences)
Permanent URI for this collectionhttp://ir-dev.dut.ac.za/handle/10321/217
Browse
2 results
Search Results
Item Judicial review as an accountability mechanism in South Africa : a discourse on the Nkandla case(Durban University of Technology, 2022) Fagbadebo, Omololu; Dorasamy, NirmalaSeparation of powers among the three branches of government, in most Constitutional democracies, is a design to avert the tyranny of a personalized rule. With specific roles, in relationships characterized by separated but shared powers, each branch of government is a watchdog against the other in case of any abuse. In the South African governing system, the Constitution guarantees functional power relationships among the legislature, the executive, and the judiciary branches of the government. Nevertheless, the dominant party system, in practice, has weakened the legislative oversight and accountability powers to tame the excesses of the executive, contrary to the intendments of the drafters of the Constitution. Judicial review of the various legislative and executive actions, however, has created precedents that seek to reassert legislative capacity to hold the executive accountable. At one time or the other, the judiciary had indicted the legislature and the executive of dereliction of duties. Using primary and secondary data from judicial pronouncements, constitutional provisions, and other public documents, with extant literature, respectively, this paper reviewed the environment that prompted the activist posture of the South African judiciary. An entrenched culture of party loyalty and the incapacity of the legislature to enforce accountability have bolstered the need for assertive judicial review in ensuring accountability. The failure of the legislature to exercise its oversight power has provided the platform for the judiciary to rise as a formidable accountability instrument. Judicial independence, guaranteed by The Constitution, would continue to sustain the tenets of South African representative democracy.Item An analysis of the judicial review of the impeachment procedures in Anambra, Oyo, and Plateau in Nigeria’s Fourth Republic(Romanian Cultural Foundation, 2020-06-11) Fagbadebo, Omololu M.; Dorasamy, NirmalaBackground: The Nigeria’s presidentialism recognises the interdependence of the three branches of government: the legislature, the executive and the judiciary, in a system of separated but shared powers. In furtherance of its oversight role, the Constitution grants the legislature the power, through a prescribed procedure, to remove the heads of the executive guilty of gross misconduct while in office. However, some state legislatures removed their governors in violation of the constitutional requirements. This prompted judicial intervention in interpreting the actions of the legislatures vis a vis the constitutional provisions. This paper reviews the intervention of the judiciary in the cases of impeachment of the governors of Anambra, Oyo and plateau States, Nigeria. Materials and Methods: This is a qualitative study with primary and secondary data generated from court judgments, public and archival materials, key informants’ interviews and extant literature. Result: Upon judicial review of the three cases, the judiciary declared the legislative process that led to the removal of the governors unconstitutional and ordered their restoration. However, the decisions of the courts were based on the violation of the constitutional procedures rather than on the merits of the allegations of gross misconduct. The Constitution ousts the jurisdiction of the courts to inquire into the allegations of gross misconduct. The paper discovered that while the judicial review gave reprieve to the governors, the pronouncements were indication that the legislature could rebound and exercise their power according to the set rules. Conclusion: The paper concluded that the breach of the constitutional procedure by the legislature was an indication that the lawmakers were not originally interested in the effective exercise of the oversight power of impeachment to advance accountability. The lawmakers were motivated by the pursuit of self-interest rather than desire for the public good. The indictment of the legislature by the outcomes of judicial review was an indication that the members of the legislature were not independent minded as envisaged by the constitution to make decisions in the interest of the public.