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South Africa’s Experience in Constitution-Building

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Abstract

This chapter draws on a brief history of the constitution-making process in South Africa to highlight five particular aspects of constitution-building. Noting that the process of constitution-making has become a key element in political transitions and post-conflict settlements in the post-cold war era, it is argued that the process of building a constitutional democracy encompasses a far broader range of issues than the drafting and adoption of a new constitution. The chapter identifies and discusses five sources of variation in constitution-building processes that impact the different issues enabling the building of a constitutional democracy. First, there is a temporal dimension, which may be characterised as being both macro and micro in scope, in that the general historic timing of a democratic transition as well as the specific time-frames within the process of constitution-making, all have clear consequences for the choices available to the parties. Second, there is a question of process in which the specific process of constitution-building, chosen from a range of historic options, is deployed by the parties to achieve specific advantages over their opponents but can also serve as a means to ensure that the political transition proceeds. Third, participation in the constitution-building process is an aspect that is important both for those who are active in the actual constitution-making process as well as the broader society that is called upon to accept and legitimate the constitutional product as the basis of a future social compact. Fourth, the recognition and use of constitutional principles is an important element of constitution-building in this era. Finally, the substantive choices inherent in a constitution-building process involve alternative institutional designs and substantive elements of the constitution, all of which have a significant impact on the overall process of constitution-building.

Heinz Klug is Professor of Law, University of Wisconsin Law School and Senior Honorary Research Associate at the Oliver Schreiner Law School, University of the Witwatersrand. I wish to thank Jonathan Boston and Petra Butler for their kind invitation to address the Reconstituting the Constitution conference. I want to also express my gratitude to the participants in the conference as well as my anonymous reviewer for the insightful comments I received while acknowledging that any errors are my own.

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Notes

  1. 1.

    Scheppele (2004), p. 391.

  2. 2.

    Klug (2000), pp. 104–105.

  3. 3.

    See King et al. (1994).

  4. 4.

    See Klug (2000, 2001).

  5. 5.

    See S. Afr. Const. 1993, Fourth Schedule.

  6. 6.

    Ibid, section 68.

  7. 7.

    Act 34 of 1995.

  8. 8.

    See generally Heunis (2007).

  9. 9.

    See generally Kasrils (1993), pp. 301–368.

  10. 10.

    S. Afr. Const. 1993, section 73(1).

  11. 11.

    See Bell (1997).

  12. 12.

    Ibid, p. 34.

  13. 13.

    Constitutional Principle XXXIII entrenched the government of national unity until 30 April 1999. This was retained in the “final” Constitution through the inclusion of the transitional provisions in Schedule 6. Clause 9(2) of Schedule 6 provided for the continuation of the government of national unity until 1999.

  14. 14.

    As required by section 73(6) of the “interim” Constitution.

  15. 15.

    See Ghai and Galli (2006).

  16. 16.

    Benomar (2004).

  17. 17.

    Arjomand (1992), p. 75.

  18. 18.

    See Beatty (1994b). See also Held (1991).

  19. 19.

    Arjomand (1992), p. 49.

  20. 20.

    Ibid, p. 49.

  21. 21.

    But cf Franklin and Baun (1995). This study acknowledges the existence of international models but concludes that “constitutionalism is largely a cultural phenomenon and not simply the product of properly designed institutions and structures of government,” (p. 231). The potential success of democratic constitutionalism is ascribed by the authors to “favorable economic conditions and a certain amount of external security,” which they consider “important factors supporting the establishment of democratic regimes in postwar West Germany and Japan” (p. 232).

  22. 22.

    See Mare and Hamilton (1987), pp. 163–170.

  23. 23.

    See Chris Rencken, MP and spokesman for the National Party, statement to the Weekly Mail, 22 November 1985, stating that a constitutional “model tailored specifically for the country’s poly-ethnic nature may very well include elements of federalism, confederation, consociationalism, proportionalism, and even elements of the Swiss canton system,” quoted in South African Institute of Race Relations (1986).

  24. 24.

    The Principle of self-determination was incorporated into the ANC’s 1949 Programme of Action but found its first application to South Africa in a resolution demanding the right of self-determination submitted by ANC President JT Gumede, JA la Guma and D Colraine to the inaugural congress of the League Against Imperialism, in Brussels in February 1927 (Meli 1988, pp. 74–75). See generally, Klug (1990).

  25. 25.

    Although the international human rights movement has grown steadily since the Second World War, the recent hegemony of fundamental rights as a basis for constitutional reconstruction is quite dramatic when compared to the situation in the mid-1970s when it was possible to argue that constitutional bills of rights were increasingly being abandoned. See Nwabueze (1977), p. 309.

  26. 26.

    See Rosenfeld (1993); see generally, Beatty (1994a).

  27. 27.

    See Principles Concerning the Constituent Assembly and the Constitution for an Independent Namibia, transmitted to the Secretary-General of the United Nations on 12 July 1982 (S/15287). But cf. Wiechers (1991).

  28. 28.

    See United Nations Security Council Resolution, S/20412 of 23 January 1989, para 35.

  29. 29.

    See Buergenthal (1991).

  30. 30.

    Ibid, p. 370.

  31. 31.

    Conference on Security and Co-operation in Europe (1990). See Halberstam (1993).

  32. 32.

    See Wani (1993).

  33. 33.

    Declaration of the OAU Ad-hoc Committee on Southern Africa on the Question of South Africa, Harare, Zimbabwe, 21 August 1989, reprinted in ANC Department of Political Education (1990), p. 34.

  34. 34.

    United Nations (1991).

  35. 35.

    See Mutiti (1985).

  36. 36.

    See Inkatha Freedom Party (1992).

  37. 37.

    See Position Paper of the Inkatha Freedom Party for Submission at the CODESA meeting of 6 February 1992, reprinted in Blaustein and Flanz (1992), p. 173.

  38. 38.

    See Murray (2001), p. 107. See also Ebrahim (1998), pp. 239–250.

  39. 39.

    Ibid, p. 107.

  40. 40.

    Ibid, p. 112.

  41. 41.

    Ibid, p. 112.

  42. 42.

    See ANC, 1990. Constitutional Guidelines for a Democratic South Africa (1988), reprinted in ANC Department of Political Education (1990).

  43. 43.

    See Harare Declaration: Declaration of the OAU Ad-hoc Committee on Southern Africa on the Question of South Africa, Harare, Zimbabwe, 21 August 1989, reprinted in ANC Department of Political Education (1990).

  44. 44.

    Hirschl (2004).

  45. 45.

    Goldsworthy (2006).

  46. 46.

    Sajo (2004).

  47. 47.

    Huls et al. (2009).

  48. 48.

    Jackson (2010).

  49. 49.

    Tushnet (2003), p. 1.

References

  • ANC Department of Political Education (1990) The road to peace: resource material on negotiations. Marshalltown, Johannesburg

    Google Scholar 

  • Arjomand SA (1992) Constitutions and the struggle for political order: a study in the modernization of political traditions. Eur J Sociol 33(1):39–82

    Article  Google Scholar 

  • Beatty DM (ed) (1994a) Human rights and judicial review: a comparative perspective. Martinus Nijhoff Publishers, Dorderecht

    Google Scholar 

  • Beatty DM (1994b) Human rights and the rules of Law. In: Beatty DM (ed) Human rights and judicial review: a comparative perspective. Martinus Nijhoff Publishers, Dorderecht

    Google Scholar 

  • Bell P (ed) (1997) The making of the constitution: the story of South Africa’s constitutional assembly, May 1994 to December 1996. Churchill Murray Publications, South Africa

    Google Scholar 

  • Benomar J (2004) Constitution-making after conflict: lessons for Iraq. J Democracy 15(2):81–95

    Article  Google Scholar 

  • Blaustein AP, Flanz GH (eds) (1992) Constitutions of the world, South African supplement, release 92-2. Oceana Publications, Dobbs Ferry NY

    Google Scholar 

  • Buergenthal T (1991) The CSCE rights system. George Washington J Int Law Econ 25:333–386

    Google Scholar 

  • Conference on Security and Cooperation in Europe (1990) Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe, 29 June

    Google Scholar 

  • Ebrahim H (1998) The soul of a nation: constitution-making in South Africa. Oxford University Press, Cape Town

    Google Scholar 

  • Franklin DP, Baun MJ (eds) (1995) Political culture and constitutionalism: a comparative approach. ME Sharpe, Armonk, NY

    Google Scholar 

  • Ghai Y, Galli G (2006) Constitution building processes and democratization. IDEA. Available at: http://www.idea.int/publications/dchs/upload/dchs_vol2_sec6_2.pdf

  • Goldsworthy J (ed) (2006) Interpreting constitutions: a comparative study. Oxford University Press, Oxford

    Google Scholar 

  • Halberstam M (1993) The Copenhagen document: intervention in support of democracy. Harvard Int Law J 34:163–175

    Google Scholar 

  • Held D (1991) Democracy, the nation-state and the global system. In: Held D (ed) Political theory today. Polity, Oxford

    Google Scholar 

  • Heunis J (2007) The inner circle: reflections on the last days of white rule. Jonathan Ball, Cape Town

    Google Scholar 

  • Hirschl R (2004) Towards juristocracy: the orgins and consequences of the New constitutionalism. Harvard University Press, Cambridge MA

    Google Scholar 

  • Huls N, Adams M, Bomhoff J (eds) (2009) The legitimacy of highest Courts’ rulings: judicial deliberations and beyond. TMC Asser Press, The Hague

    Google Scholar 

  • Inkatha Freedom Party (1992) Why the Inkatha freedom party objects to the idea of the new constitution being written by a popularly elected assembly (whether called “Constituent Assembly” or called by any other name), undated submission to Codesa Working Group 2

    Google Scholar 

  • Jackson VC (2010) Constitutional engagement in a transnational Era. Oxford University Press, Oxford

    Google Scholar 

  • Kasrils R (1993) “Armed and Dangerous”: My undercover struggle against apartheid. Heinemann Educational, Oxford

    Google Scholar 

  • King G, Keohane RO, Verba S (1994) Designing social inquiry: scientific inference in qualitative research. Princeton University Press, Princeton, NJ

    Google Scholar 

  • Klug H (1990) Self-determination and the struggle against apartheid. Wisconsin Int Law J 8:251–299

    Google Scholar 

  • Klug H (2000) Constituting democracy: law. Cambridge University Press, Cambridge, Globalism and South Africa’s Political Reconstruction

    Book  Google Scholar 

  • Klug H (2001) Participating in constitution-making: South African aspirations and realities. In: Andrews P, Ellmann S (eds) The post-apartheid constitutions: perspectives on South Africa’s basic law. University of the Witwatersrand Press, Johannesburg

    Google Scholar 

  • Mare G, Hamilton G (1987) An appetite for power: Buthelezi’s Inkatha and South Africa. Ravan Press, Johannesburg

    Google Scholar 

  • Meli F (1988) South Africa belongs to us: a history of the ANC. Zimbabwe Publishing House, Harare

    Google Scholar 

  • Murray C (2001) Negotiating beyond deadlock: from the constitutional assembly to the court. In: Andrews P, Ellmann S (eds) The post-apartheid constitutions: perspectives on South Africa’s basic law. Witwatersrand University Press, Johannesburg

    Google Scholar 

  • Mutiti MAB (1985) South Africa: is it a sovereign independent state? Aloe Press, Zimbabwe

    Google Scholar 

  • Nwabueze BO (1977) Judicialism in commonwealth Africa: the role of the courts in government. Hurst, London

    Google Scholar 

  • Rosenfeld M (1993) Modern constitutionalism as interplay between identity and diversity: an introduction. Cardozo Law Rev 14:497–531

    Google Scholar 

  • Sajo A (ed) (2004) Judicial integrity. Martinus Nijoff Publishers, Leiden

    Google Scholar 

  • Scheppele KL (2004) Constitutional ethnography: an introduction. Law Society Rev 38(3):389–406

    Article  Google Scholar 

  • South African Institute of Race Relations (1986) Race Relations Survey 1985

    Google Scholar 

  • Tushnet M (2003) The new constitutional order. Princeton University Press, Princeton, NJ

    Google Scholar 

  • United Nations (1991) Declaration on Apartheid and its destructive consequences in Southern Africa, GA Resolution S-16/1, 14 December 1989, reprinted in Secretary-General, Second Report, UN Doc. A/45/1052 (1991), Annex III

    Google Scholar 

  • Wani IJ (1993) The rule of law and economic development in Africa. East African Journal of Peace and Human Rights 1:52

    Google Scholar 

  • Wiechers M (1991) Namibia: the 1982 constitutional principles and their legal significance. In: van Wyk D, Wiechers M, Hill R (eds) Namibia: constitutional and international law issues. VerLoren Themaat Centre for Public Law Studies, Pretoria

    Google Scholar 

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Authors and Affiliations

  1. University of Wisconsin Law School, University of Wisconsin–Madison, 975 Bascom Mall, Madison, WI, 53706, USA

    Heinz Klug

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  1. Heinz Klug
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Correspondence to Heinz Klug .

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  1. , School of Law, Queen Mary, University of London, Mile End Road, London, E1 4NS, United Kingdom

    Caroline Morris

  2. , Institute of Policy Studies, Victoria University of Wellington, Wellington, New Zealand

    Jonathan Boston

  3. , Faculty of Law, Victoria University, Wellington, Lambton Quay 15, Wellington, New Zealand

    Petra Butler

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Klug, H. (2011). South Africa’s Experience in Constitution-Building. In: Morris, C., Boston, J., Butler, P. (eds) Reconstituting the Constitution. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-21572-8_4

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