Making sense of this separation of power

2009-10-06 10:19

I THINK there is a need to revisit the “separation of power topic”

especially the role of the South African Constitutional Court.

Firstly, there are general elections after four years when adult South Africans are called to go and cast their vote to elect the new government, and secondly, our Parliament in Cape Town elects the country’s president, thirdly, the state president appoints the executive and the judges of the highest court in the land.

The question that remains somewhat unanswered is who then has the

last word within these three powerful spheres of government – legislative,

executive and the judicial.

My understanding is that the legislative and the executive are both

representing the will of all South Africans, but what about the Constitutional

Court judges? The role and the mandate of this court should be, according to my understanding, to advice the government of the day on matters that are contrary to the Constitution of the republic and further become the custodians of this very Constitution. Not so very long ago, the Constitutional Court overruled legislation, the Civil Union Bill, giving legislators a timeframe for Parliament to pass such an act, which allows two people of the same sex to marry . The overall survey of the

general public suggested a different opinion, which was against both the

Constitutional Court’s judgment and the outcome of Parliament in regulating the

conduct of same-sex marriage. Therefore, are the legislators really serving the

interests of the people or that of the Constitutional Court?

I am currently trying to find out if out of all the court’s judges,

there is one among them who is gay or lesbian. I say this because this might

have had an impact on their same-sex marriage ruling.

This particular judgment as it was decided by the court did not

provide legislators an option, or ample time for that matter, because as I look

at it legislators should have amended the Constitution or called for a

referendum for the public to air their views on the matter.

I tend to believe that there is lack of sensitivity among


The majority of South Africans are Christians and Christianity is

opposed to the aforesaid bill. I doubt not that there is a possibility the

majority of the ordinary electorate are still furious about what has transpired

regarding the same-sex marriage.

Moreover, I am fully aware that legislators cannot on each and

every legislation call for a referendum for public views, but the fact remains

that legislators hold a mandate to act on behalf of the general public.

But on the above ruling I believe they somehow abused their mandate

and were indeed misled by the Constitutional Court.

As a South African, I propose for the review of the role and the

mandate of the this court. In fact, my view is that it should advise the

legislative on various options to take which probably are against or act in

contempt of the Constitution.

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