Constitution | January 25, 2012 at 12:36 pm

Building a Nation

By and

The Roadmap to South Africa’s Constitution

At the time of its creation, the South African Constitution was hailed as a landmark success for young democracies, especially in Africa. The New York Times in a 1996 article described the event as “What was once nearly unthinkable became nearly unanimous… as South Africa adopted a new Constitution that guarantees racial equality, the rule of law and regular elections based on universal suffrage.” After decades of minority rule through Apartheid, the framers of the new constitution needed to form a new government while navigating the tense situation created by a racially segregated nation. The constitutional creation process in South Africa demonstrates that public and stake holder participation are essential elements during post-conflict transitions.

Deconstructing the House

Prior to this adoption, the Republic of South Africa’s government was made up of three houses, divided along ethnic lines. The House of Assembly was for the white community and it constituted a majority with 178 seats. The House of Representatives for the colored community made up 85 seats and the House of Delegates for the Indian community had 45 seats, and virtually no representation for the 70 percent majority black community. The two smaller houses did not have the collective power to override decisions made by the House of Assembly.

In such a system, each House was required to discuss its “own affairs” as an ethnic group, with final decisions being made by the Assembly, advised by a President’s Council that took members of the Assembly as representatives. There was also no review of the constitution by an independent and impartial judiciary allowing the government to completely override individual liberty. According to Laurence H. Tribe, in his book Constitutional Choices, section 59 (2) of the constitution expressly provides that with a few exceptions, “[n]o court of law shall be competent to enquire into or to pronounce upon the validity of any act passed upon by Parliament.” Unchecked political power rested within the white minority.

The Interim Phase

As South Africa began the transition to a true democracy in the early 1990s, a new constitutional framework for government was necessary to equitably distribute power throughout society. The process occurred through a series of stages. The first step, was to bring all of the actors to the table. Louis Acoin, an Associate Professor at the Institute for Human Security in the Fletcher School of Diplomacy, described that firstly, “an interim constitution must be provided for and agreed on by the elites in all sides of the conflict. It also must be very clear from the beginning that the ultimate constitution is the product of robust public participation.” The further development of a permanent government would depend on the full agreement of all stakeholders and the public.

Reaching out

Involving the public was essential to framing the final constitution in 1996. The new government began a large outreach campaign.  According to Acoin, the population had to be educated on the importance of a new constitution and their opinions polled. Professor Penelope Andrews, Associate Dean and Professor of Law at CUNY School of Law, attributed the successful outreach to a widespread use of television and radio channels, in which the public was asked to call in and respond to questions. The radio was one of the more effective tools since even the poor in South Africa had access to it.

Professor Frank Michelman at the Harvard Law School pointed out that keeping the public informed by accepting open submissions from them on suggestions was also a key part of constitution creation. Using information collected from such outlets enabled the constitutional committee to obtain feedback from the citizens of this new democratic South Africa.

There were so many committees and subcommittees involved in drafting this constitution, that according to Professor Michelman, “A law professor in those years in South Africa had a pretty high chance of being involved in constitution building.” “People wanted to move away from rule by law to rule of law,” says Professor Andrews. It was of course essential that the judiciary was the central player in the constitution making process, especially an independent judiciary. The independence of the new judiciary was clearly established in 1996 when the constitutional court, the highest court at the time, raised objections to part of the 140-page document it was given by the new government. They praised most of the new constitution, but said that the new restructuring of the senate, proposed by President Mandela gave substantially less power to the senate, which failed to meet the requirements of facilitating a peaceful transition to a post-apartheid government. The judiciary’s dissent on parts of the document demonstrated the courts’ ability to act independently.

Sticking to the Basics

The creation of a comprehensive Bill of Rights was integral to the durability of South Africa’s Constitution. Emerging out of a culture of authoritarian rule, South Africa’s Bill of Rights served as a conduit through which the democratic principle of accountability could be injected into the political system. Implicit in the language of the Bill of Rights is the assumption that government in the post-Apartheid era would have to provide legitimate reasons for any exercise of power and that there are limitations on governmental power. Constitutional interpretation of the conflicting boundaries of individual rights has rested on doctrinal precedents set by the Canadian Supreme Court’s jurisprudence.

Drawing on the 1995 case of S v Zuma, the South Africa’s Constitutional Court adopted an interpretive approach to individual rights that was expansive in scope and contextual in analysis. The Constitutional Court has consistently focused on taking the purpose of each individual right into account when ruling on cases. Indeed, South Africa’s constitutional framework is predicated on a tripartite arrangement of rights that fall under the broad categories of dignity, equality, and freedom. A visible and contentious manifestation of this rights framework is the Constitutional Court’s ruling in S v Makwanyane that invalidated the death penalty. One innovative aspect of South Africa’s Bill of Rights is the inclusion of the protection of socio-economic rights. The Apartheid era was marked by a period of a widening wealth gap that was facilitated by the legal framework in place, and so the Bill of Rights reflected the government’s desire to remedy these past injustices.

Providing a model

Harvard Law School Professor of Constitutional Law, Laurence H. Tribe helped formulate the basic protections for individual rights within the constitution, by the time it was instituted in 1996. He described that “one of my proudest possessions is a copy of South Africa’s new Constitution bearing a handwritten note from Nelson Mandela thanking me personally for my “assistance in drafting” that nation’s “first democratic Constitution.”” The South African Constitutional process hailed a smooth transition of governments and a new era of public engagement, understanding and equality. This transition was not without its hiccups and barriers, but by ensuring a wide consensus across all party lines, public and judicial engagement and a clear picture of what rights must be upheld, the process became a model for new governments and a reminder to move away from past injustices. 

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