CONSTITUTIONALISM IN SOUTH AFRICA
Session 1: Introduction
1.1 Timeline of Recent History of South Africa
1948: National Party (party that put in place apartheid policies) was elected
1948-1980’s: Lots of internal strife, battling of apartheid, pressure for change, etc
1983: First shift in apartheid policy, first Constitution was adopted which extended the franchise to “Indians” and “Coloureds” but the reality was that whites remained totally in control
1988: African National Congress (ANC) published the Constitutional Guidelines for a Democratic South Africa, the first public expression by the ANC of an initiative aimed at achieving a negotiated settlement in South Africa.
1989: International and internal pressures of the government increased, most were convinced that apartheid was unsustainable, ANC was accepted as a negotiating partner
1990: Nelson Mandela released from prison
1991: Multi-party conference (including ANC and National Party) on procedures for drafting the new constitution, called the Conference for a Democratic South Africa (CODESA); CODESA fell apart and talks were then put on hold bc of fighting but eventually reconvened in 1993
1993: Details of the interim constitutional document were finalized and the interim constitution was adopted by Parliament (still under control of the National Party). Interim Constitution was drafted to be in effect for only two years until a new Parliament elected by all the people drafted and adopted a final Constitution. Many of the key provisions were retained in nearly identical form in the final Constitution. Also, the Constitutional Court was established to give effect to the supremacy of the constitution and the new human rights culture introduced by the commitment to constitutionalism.*
1994: Mandela elected president by the National Assembly, Interim Constitution came into force
1995: Truth and Reconciliation Commission established
1996: Final version of the Constitution approved by Parliament. The Constitutional Court returned some sections of the Constitution to Parliament for consideration and subsequently ratified the Constitution when Parliament made the recommended changes.
1997: Constitution entered into force
*NOTE: There are some selected provisions from the Interim Constitution in Session 1, but I didn’t really feel like it was necessary to summarize them here since most of the provisions are the same in the final Constitution and the important different provisions are few and mentioned throughout the cases.
1.5 Highlights of the Interim Constitution
Introduced political equality among all citizens of a single, unitary state, reversed apartheid policies of racial and geographic segregations, created a common South African citizenship, extended the franchise to all citizens over 18 years of age
Westminster model of parliamentary supremacy and first-past-the-post electoral system was abandoned and replaced with a constitutional structure in which legislative power was constitutionally allocated to different levels of government and representation determined according to the proportion of the vote received by any political party
Brought to an end the reign of Parliamentary sovereignty, according to which a mere majority in the national legislature had the power to change the law, including the basic structure of the state and the rights of citizens, without restraint.
New state was based on the principle of constitutional supremacy, in which all branches of government, including the legislature, are bound by a Constitution which included a bill of rights designed to end centuries of state-sanctioned abuse and to protect the human rights of members of South African society.
Under a system of Parliamentary sovereignty, the courts were required to abide by the decisions of the political majority in parliament, whereas under a system of constitutional supremacy the courts are mandated to enforce the constitution even to the point of striking down the decisions of the democratically-elected legislature.
Session 2: History of the Constitutional Process
2.1-2.3 Note on Constitutionalism: The only reason I put this part in is bc it’s a good illustration of the tensions that can result between the will of a majority and constitutional commitments to the upholding of human rights. See 2-2 if you want more info but I’m pretty sure it’s not at all relevant.
· Constitutionalism is commonly understood as a “commitment to limitations on ordinary political power” and, therefore, an essentially anti-democratic strategy.
· In the context of vast inequalities where economic dislocation and social marginalization has an uneven racial impact – which still defines the fact of the majority of South Africans – the notion of a restricted democracy is inherently delegitimizing.
· Concern that South Africa’s new constitutional order may face a crisis of legitimacy seemed to be borne out by initial public response to the Constitutional Court’s first major decision declaring the death penalty unconstitutional. See decision below.
· To quiet public fears about constitutionalism, South Africa’s democratically elected Constitutional Assembly has engaged in a range of activities designed to encourage participation in the constitution making exercise. These have included a vast publicity exercise, public meetings, weekly television program “Constitutional Talk,” and a system for the public to submit comments about constitutional issues.
2.3 Overview of Makwanyane
In Makwanyane, the Constitutional Court in its first politically important and publicly controversial holding struck down the death penalty.
Historically, the death penalty had been frequently imposed during apartheid, almost solely on people of color.
The court’s declaration of a new order based on constitutional rights was forcefully carried through in the adoption of a generous and purposive approach to the interpretation of the fundamental rights enshrined in the Constitution.
President of the Constitutional Court Arthur Chakalson wrote a unanimous opinion, giving explicit and great weight to the introduction of constitutional review. Though all 11 justices concurred in part in the opinion, they each wrote separate opinions and had different views about the reasons why the death penalty was invalid.
The Court argued that the failure to deal explicitly with the issue of capital punishment in the Constitution was deliberate, that this issue was purposely left to the Constitutional Court to make the decision whether the death penalty is consistent with the fundamental rights enshrined in the Constitution.
Even though public opinion seemed to favor the retention of the death penalty (because of concerns about crime), the Court was firm in its belief that “public opinion in itself is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favor.”
Case: S v. Makwanyane and Another (1995)
Facts/History: Two accused in this matter were convicted on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. They were sentenced to death on each of the counts of murder and to lo
he very reason for establishing the new legal order and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.
“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favor.”
The assessment of popular opinion is essentially a legislative and not just a judicial function. –Justice Powell, Furman v. Georgia
Cruel, Inhuman, and Degrading Punishment: Ct relies on international authorities that have held the death sentence to be cruel, inhuman or degrading. Ct says that in the context of the Constitution, the death penalty is cruel, inhuman, or degrading within a broad reading of section 11(2).
Section 33 – Limitations Clause Analysis: Is capital punishment for murder justifiable? Question is whether the infliction of death as a punishment for murder has been shown to be both reasonable and necessary? This burden of proof is on the legislature.
§ Two-Stage Approach: a broader rather than narrow interpretation is given to the fundamental rights enshrined in Chapter 3 and limitations have to be justified through the application of section 33.
§ The criteria prescribed by section 33(1) for any limitation of the rights contained in section 11(2) are that the limitation must be justifiable in an open and democratic society based on freedom and equality, it must be both reasonable and necessary and it must not negate the essential content of the right
§ The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weight up of competing values, and ultimately an assessment based on proportionality.
§ Reasons put forth in favor death penalty: deterrence, retribution, prevention. These must be weighed against the alternative punishments available to the State and the factors which taken together make capital punishment cruel, inhuman and degrading: the destruction of life, the annihilation of dignity, the elements of arbitrariness, inequality and the possibility of error in the enforcement of the penalty.
§ In the end, the ct says there is a difference between encroaching upon rights for the purpose of punishment and destroying them all together.
o HOLDING: The rights to life and dignity are the most important of all human rights; they are to be valued above all others. Since a clear and convincing case that is required to justify the death sentence as a punishment for murder has not been made out, the requirements of section 33(1) have not been satisfied and section 277(1)(a) of the Criminal Procedure Act of 1977 must be held to be inconsistent with section 11(2) of the Constitution.
