Balancing, Proportionality, and Constitutional Rights

In the theory and practice of constitutional adjudication, proportionality review plays a crucial role. At a theoretical level, it lies at core of the debate on rights adjudication; in judicial practice, it is a widespread decision-making model characterizing the action of constitutional, supra-national and international courts. Despite its circulation and centrality in contemporary legal discourse, proportionality in rights-adjudication is still extremely controversial. It raises normative questions—concerning its justification and limits—and descriptive questions—regarding its nature and distinctive features. The chapter addresses both orders of questions. Part I centres on the justification of proportionality review, the connection between proportionality, balancing and theories of rights and the critical aspects of this connection. Part II identifies and analyses the different forms of proportionality both in review, as a template for rights-adjudication, and of review, as a way of defining the scope and limits of adjudication

Human Dignity and Socio-Economic Rights

The South African Constitution numbers among a very few constitutions around the world which include justiciable socio-economic rights. One of the controversies surrounding judicial enforcement of such rights is the extent to which it is appropriate for courts to engage in policy choices in relation to the use of state resources in light of the doctrine of the separation of powers. The South African Constitutional Court has responded by developing an approach to adjudication of socio-economic rights in which the role of the court is to determine the reasonableness or otherwise of measures taken by the legislature and executive to implement such rights. However, the South African Constitution is also notable for its identification of human dignity as an underlying value and the explicit duty placed on the courts to interpret the rights protected under the Bill of Rights in conformity with this value. This article scrutinises the socio-economic rights jurisprudence of the South African Constitutional court in light of the Constitutional commitment to human dignity. It questions whether reasonableness review in socio-economic cases successfully balances human dignity with the appropriate degree of deference to the legislature and executive, in compliance with the doctrine of the separation of powers. © 2013 Springer Science+Business Media Dordrecht

Restoring Leviathan? The Kenyan Supreme Court, constitutional transformation, and the presidential election of 2013

This paper analyzes the Kenya Supreme Court's ruling in Odinga v IEBC, a petition challenging the declared outcome of the 2013 presidential election. The case was immediately significant given the hope that recourse to the courts would help to avoid widespread civil unrest which had followed the disputed presidential election of 2007. It was also a crucial test for the new dispensation established under the 2010 Constitution widely held to have broken with the authoritarian and unaccountable regimes which dominated Kenya both under colonialism and after independence. The paper critically reviews the reasoning of the Supreme Court on six key issues raised in the petition attending to the broader normative and political implications of the judgment. We argue that both in its substantive conclusions and in the style of reasoning adopted, Odinga v IEBC is inconsistent with the transformative ambitions underpinning the new constitution. Through its emphasis on evidential and procedural rules, rather than principled analysis, the judgment tends to reinforce the powers of the executive and the model of a unitary state beyond the reach of the law