This paper is a contextual analysis of the Constitutional Courts of South Africa and Zimbabwe. Both Courts are founded on approximately identical constitutional provisions, but have proceeded on markedly different jurisprudential trajectories. Whilst the South African Court is celebrated for delivering on the “promise” of judicial review, the Zimbabwean Court is generally viewed as a captured institution, subject to the whims of the executive. This understanding of courts as a binary between those enabling of and those constraining against executive and legislative power risks generalizing and falsely homogenizing the process by which courts claim and exercise power. It also fails to account for the reasons why courts, even those in authoritarian regimes, remain productive sites of human rights enforcement. This also has the adverse effect of unduly crediting written law as the sole source of judicial power without accounting for contextual influences which enable or constrain the exercise of that power. This paper investigates judicial exercise of power in two countries in which different operating contexts resulted in markedly distinct approaches to judicial review in spite of largely similar constitutional frameworks. It posits that such a contextual approach allows for more accurate understandings of claims and use of judicial power which can inform efforts to enhance constitutionalism and rule of law beyond pedantic efforts at effecting constitutional transplants.

Keywords: Courts, Human Rights, Constitutional law, Legal history