Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction (review)

Since the early 1990s, significant political revolutions have ended oppressive regimes and brought forth democratic governments. A standard explanation for this transformation is that it is simply a reaction to the communist or colonial past of the respective state. In this important work, Heinz Klug questions why the creation of an independent judiciary has been included in the new dispositions of power in states such as South Africa, especially when the judiciary and the law in general were an integral component of the prior oppressive regime. He examines how a culture of judicial constitutionalism, and a political framework that included judicial review, came to be accepted in postapartheid South Africa.

As a participant in many of the commissions and government ministries that negotiated constitutional questions for a postapartheid South Africa, Klug offers valuable insight into the political mechanisms that resulted in that country's multiracial democratic government. He explores the international and domestic influences that led South Africa to accept a constitutional court that would circumscribe the powers of a legislative majority and a democratically elected government.

Klug begins his analysis with an historical account of how apartheid South Africa came to reject the principle of judicial review to strengthen the dominance of parliamentary sovereignty. He notes that the idea of vesting sovereignty in the people, rather than in the government, met with stiff resistance even before the establishment of the Union of South Africa, in 1910. At one point, when the chief justice of the High Court attempted to exercise the power of judicial review, the president called an emergency session of the legislature, dismissed the chief justice, and then warned the new chief justice not to consider applying judicial review, since it was "a principle of the devil."

Klug extends his historical examination throughout the apartheid era of the twentieth century. He provides ample evidence that the courts in South Africa had no power to question or invalidate the apartheid policies promulgated under the rule of the governing Nationalist Party.

Klug explores how international pressures influenced the independence movement (the African National Congress) and the apartheid government to accept constitutional norms. As South Africa's apartheid policies became a humanitarian question of international concern, the United Nations and other political organizations attacked the white-minority regime in terms that legitimized democracy as a global entitlement. The emergence of a normative right to democratic participation became linked to political transformations occurring simultaneously in the former Soviet Union and Eastern Europe, and to decolonization struggles still underway in Africa and Latin America after the collapse of military dictatorships in the 1980s.

A key development in the evolution of a constitutional culture in South Africa came from the adoption of a set of constitutional principles by the Western Contact Group in its efforts to resolve the dispute over South Africa's occupation of neighboring Namibia. This process constituted the international community's first application of substantive principles for establishing a constitutional democracy. Access to justice (to protect one's rights) became a standard for measuring real democracy. Both the antiapartheid movement and the Nationalist Party felt compelled to frame their political positions in terms that embraced standards of democratic constitutionalism.

One of Klug's central arguments is that the distribution of property rights has always been intimately bound up with access to and the exercise of public power: "This relationship between property and power is deeply contested and has always been historically mediated by struggles for recognition and equality" (p. 20). The capacity of the courts to offer a legitimate avenue for resolving such disputes is an essential prerequisite for the development of political stability and the development of democratic rights: "the power of judicial reform is implied in the creation of a supreme constitution and its allocation of governmental powers" (p. 143).

Klug offers recent examples where the Constitutional Court of South Africa has exercised independent judicial...