Abstract:
This Article analyzes the extent to which some of the highest
courts in Africa have tackled the potential conflict between the power
of judicial review on the one hand, and public opinion on the other, by
looking at two controversial subjects, i.e., the death penalty and gay
rights, and by considering the influence of public opinion on the judicial
determination of the constitutionality of laws that imposed the
death penalty or criminalized sodomy. The Article observes that the
two principal reasons that can possibly justify the judicial consideration
of public opinion are the democratic principles of popular
sovereignty and its inherent ideals, and consequentialist theories. Yet,
finding the answer to a constitutional issue in public opinion contradicts
the very purpose of judicial review as a counter-majoritarian
institution. In particular, judicial reliance on public opinion raises serious
concerns about the protection of human rights of unpopular
minorities and about their causes which often lie at the heart of the
issue of constitutionality and judicial review. The Article argues that
courts should not exclusively rely on public opinion to determine constitutional
issues. It appears that public opinion has played a
particularly determinative role in African courts in gay rights decisions,
more so than when the constitutionality of the death penalty
was the issue. It seems that African courts, with the exception of the
South African Constitutional Court, have succumbed to the fear of
democratic illegitimacy by abdicating their legal and moral responsibility
to decide constitutional human rights issues in a neutral,
independent manner.
