Assessing Judicial Review in the domain of National Security

Abstract

Under Chapter Fourteen of the Constitution, the government has an obligation to protect its people, their rights, freedoms, property, peace, stability and prosperity and other national interests. However, some of the strategies employed by the Executive in meeting the obligation to protect have been incompatible with fundamental constitutional principles and the rule of law. Judicial review of such executive strategies in matters of national security has presented a challenge whenever courts have had to balance the need to protect national security on the one hand and the enforcement of constitutionally enshrined rights of the citizen on the other, within the framework of the obligation to protect. The challenge arises because there is no judicial nor statutory framework for judicial review of national security functions by the Executive. The common argument that certain aspects of executive conduct while ensuring national security are non justiciable and not amenable to judicial review is analysed and debunked with a finding that national security like other constitutional functions of government is justiciable and a contrary stand would go against Rule of Law. The thesis argues that in a constitutional supremacy regime, judicial review remains central to the doctrine of Rule of Law even as it appreciates executive institutional competence in matters of national security. While arguing that the imprecise scope of executive authority contributes to the problems that manifest in judicial review of executive conduct in matters of national security, the thesis advocates for a more precise delineation of the margins of executive authority to guide courts on justiciable and non justiciable executive conduct. This would settle once and for all justiciability concerns which frequently arise in judicial review of executive conduct in matters of national security. A case study of the Security Laws (Amendment) Act No 19 of 2014 illustrates the challenges of balancing executive authority on one hand and constitutionally enshrined rights on the other in the absence of an established constitutional, statutory and judicial framework. The court struck out sections of legislation that would empower the executive to limit certain constitutional rights to ensure national security. The case illustrates that friction between the Judiciary and the executive would be less if there existed a framework for judicial review of national security matters. The thesis as well advances the proposition that the Constitution has introduced a new order in Article 24(4) under which limitation of rights in cases where national security concerns arise must be objectively justifiable. This supports the argument that the judiciary in ensuring Rule of Law has the constitutional mandate to interpret the Constitution which is the supreme law. The thesis argues that it would be proper that courts whenever faced with having to review executive conduct should have constitutional, statutory or judicial guidelines that help to strike an appropriate balance between individual human rights and the executive imperative to ensure national security. In the absence of such guidelines, courts have largely made ad hoc and inconsistent decisions that have failed to appreciate Article 24(1) and other opportunities presented by the Constitution. This thesis ultimately justifies judicial review of executive conduct in matters of national security as superceeding executive plea of non justiciability when it explains how the Judiciary derives its democratic legitimacy from the people through the Constitution, how executive output may not always be legitimate and therefore invite the judiciary to intervene and enforce legitimacy. In proffering a solution to the lacuna of a missing framework for judicial review, the thesis advances the proposition and suggests how Article 24 of the Constitution presents an opportunity to innovatively develop a framework which courts may adopt in judicial review.