Discussion Group on Comparative Constitutional Law and Theory

There is growing global acknowledgement of the fact that the traditional tripartite conception of the separation of powers is dated and inapt. The world over, public power is proliferating and corruption is on the rise.  Separation-of-powers theory, (institutional) design, and practice are evolving given such contemporary shifts in the exercise, abuse, and thus the ‘checking and balancing’ of public power. In particular, the rise and of the so-called fourth-branch of state represents a significant evolution in the doctrine of the separation of powers. As the fourth-branch movement garners global momentum, it is timely to reflect on these developments. In this regard, global-south constitutionalism may provide food for thought for constitutional scholars of the global north.

In her presentation, Lauren Kohn will be sharing insights on the fourth branch of state from a South African constitutional perspective. Against the backdrop of the staggering state capture that has gripped the country – detailed in the momentous Report of the Judicial Commission of Inquiry into State Capture in SA – Kohn advocates for the recognition of the ‘Integrity and Accountability’ (I&A) Branch of State. She seeks to give meaning to these animating concepts of ‘integrity’ and ‘accountability’ in theorising which kinds of constitutional bodies fall under this fourth-branch rubric and why their recognition as such is important as a matter of principle and pragmatism. Kohn identifies five features of the South African I&A bodies which illustrate both their distinctiveness from the traditional branches of state, and their unifying similarities pursuant to which they should sensibly be grouped as a fourth branch. This theorisation, and context-responsive recalibration, of the (Montesquian) separation of powers enhances the doctrine’s normative appropriateness and instrumental efficiency as a scheme of constitutional organisation and interaction for modern times.

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