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The Legal Nature of the South African Constitutional Revolution
- Fordham University Press
- Chapter
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The dramatic history of the birth of a remarkable constitution is well documented.1 My overview of its gestation and birth must perforce be deceptively brief. The South African common law is not, historically, Anglo-Saxon but rather from the time of European settlement in , Roman-Dutch. The received Roman-Dutch law was the common law of Holland prior to the latter’s codification in the first decade of the nineteenth century, and as thereafter applied and adapted in South Africa. Since , English law, more particularly in the fields of company law, evidence, and criminal procedure, has exercised considerable influence. But when difficult questions of substantive private and criminal law arise that are not closely covered by South African precedent, it is to the European commentaries on Justinian’s Digest, and even to the Digest itself, that the courts in the first instance turn. On the other hand, the constitutional law of South Africa, after unification in , was modeled on that of the British Westminster system. The legislator was omnicompetent and supreme; no supreme law existed against which the validity of parliamentary legislation could be tested. IS “CONSTITUTIONAL REVOLUTION” NOT A CONTRADICTION IN TERMS? There was one serious flaw in the model. Even after the suffrage was extended to women, the vast majority of the population remained unenfranchised. By the time South Africa became a republic in , the very limited suffrage that black Africans and persons of mixed racial origin—known as coloreds—had enjoyed in the Cape Province had been removed, and more than percent of the population had no The Legal Nature of the South African Constitutional Revolution Lourens W. H. Ackermann vote in Parliament. Black Africans were supposed to exercise their political rights in their so-called homelands, which constituted less than percent of the Republic’s territory. Prior to the constitutional revolution starting in , six so-called selfgoverning territories and four so-called independent states had come into existence, pursuant to the notorious scheme of grand apartheid. These were in truth no more than puppet territories. By this time, too, a presidential system had been adopted and the legislature came to be dominated by the executive. Increasing internal resistance and international isolation led to the adoption of the Tricameral Parliament , which created three separate houses of Parliament for whites, coloreds, and Indians, blacks still being expected to exercise their political rights in their “homelands .” Although trumpeted by the government spin-doctors as a power-sharing arrangement, a variety of gerrymandering provisions ensured that power in the Tricameral Parliament was in fact retained by the majority political party in the white house. South Africa was still in effect a white oligarchy in which whites enjoyed a form of parliamentary democracy. Even the civil rights of whites became seriously attenuated by the passing of draconian security legislation and the promulgation of successive states of emergency in the s. By this time the South African Communist Party, the African National Congress (ANC), and various other liberation movements had been banned for some time. On February , President F. W. De Klerk announced a series of dramatic concessions, including the unbanning of the major liberation movements, the release of certain political prisoners, and freer political activity. On February , Mr. Nelson Mandela was released, and on December the Conference for a Democratic South Africa (CODESA) was convened. The CODESA process collapsed in mid-, but negotiations resumed in March at the World Trade Centre outside Johannesburg. This was made possible by the liberation movements agreeing to a constitutionally entrenched system of executive power-sharing for the first five years after the first democratic elections. Thereafter the negotiations proceeded rapidly, with the Interim Constitution coming into effect on April , and the Constitution (which prudence and superstition inhibits me from calling the final Constitution) coming into effect on February . The Impasse Until eventually resolved, the fundamental impasse that kept the negotiation antagonists from agreement was the manner in which a constitution was to be adopted. The government in power in , the Nationalist Party, wanted agreement on a final constitution to be reached by the élite representatives of the negotiating parties, and such constitution to be passed by an act of the existing Parliament, which the Nationalist Party controlled. In this way the white government in power could keep control of the process until a constitution, with highly entrenched minority and other guarantees, including veto powers to its satisfaction, was agreed to and enacted by the old Parliament. The old government did...
