Abdication of responsibility or justifiable fear of Illegitimacy? The death penalty, gay rights, and the role of public opinion in judicial determinations in Africa

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.