South Africa

The Battle over the Constitution

Siri Gloppen

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429627231
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Originally published in 1997, South Africa: The Battle over the Constitution analyses rivaling positions in the South African constitutional debate from the early 1990s, via the 1993 interim constitution to the adoption and certification of the new, 'Final' Constitution in December 1996.

A theoretical framework is developed to analyze the constitutional structure of the contesting constitutional models and the book looks into their potential for addressing the problems of violence, social inequality and ethnic tension and for achieving legitimacy and constitutionalism.

It argues that the constitutional 'solutions' are premised on incomparable conceptions of South African reality, and that the Final Constitution includes elements based on incompatible world-views. The compromises required by the 'constitutional moment' could pose problems for the 'constitutional function'.

The book also discusses other factors influencing the consolidation of a constitutional democracy in South Africa, such as the role of the Constitutional Court and the attempts to create legitimacy for the constitution by broad public participation in the constitution-making process.

Part I
Rivalling Realities

1 Introduction

A New Constitution for South Africa

When South Africa’s ‘final’ post-apartheid Constitution was signed into law by President Nelson Mandela in Sharpeville on 10 December 1996, it marked the end of a six year long battle over the constitution where competing visions of the new South Africa, formed during the decades of struggle, clashed through paragraph after paragraph.

This book is an attempt to analyse this battle and the constitution that came out of it, from the perspective of the constitutional models that dominated the negotiations, and the normative conceptions and world views that inform them. The character of the rivalling positions and the dynamic between them is our primary concern, while the actual negotiation process is outlined in broad stokes to indicate how the parties’ perspectives informed their bargaining strategies and how this in turn influenced the outcome.

A land-mark in the negotiation process was the adoption of an interim constitution in November 1993. This document prepared the grounds for the April 1994 general elections that brought President Mandela and his African National Congress (ANC) into power. It defined the framework for the subsequent negotiation process and laid down the ‘rules of the political game’ for a transitional period of five years. A key element of the interim constitution was a set of 34 entrenched constitutional principles binding on the ‘final’ constitution.

Disagreement on fundamental issues characterised the constitutional negotiations throughout. How much power should be conferred on the central government? How should minority interest be safeguarded? In the days before the deadline for the passing of the ‘Constitution of the Republic of South Africa Bill’ on 8 May 1996 central issues remained deadlocked. Eventually a deal was struck. With the votes of the ANC, the National Party (NP), the Democratic Party (DP) and the Pan Africanist Congress (PAC), the Bill got the required two-thirds majority.

Adoption Day did not, however, mark the end of the battle over the constitution. According to the 1993 Interim Constitution, the Constitutional Court must certify that the text of the new constitution complies with the 34 constitutional principles. After a thorough process where political parties as well as the public were invited to make submissions, the Court ruled that the text could not be certified. In order to comply with the constitutional principles several changes had to be made, most significantly on the controversial issue of provincial powers. The Constitutional Assembly reconvened and on 11 October 1996 passed an amended constitutional text. This was again submitted to the Constitutional Court for certification and on 6 December the constitution was certified.

Is the battle over? The ‘final’ South African constitution is still a controversial document. The NP, although voting in favour of the constitution, demonstrated its dissatisfaction by resigning from the Government of National Unity (GNU) in May 1996. The Inkatha Freedom Party (IFP), who boycotted the constitutional process,¹ condemned the constitution as a death certificate for pluralism in South Africa.

Why did the Constitution turn out the way it did, and what are its prospects for making a positive contribution to South African politics? These are is the questions that underlie the analyses throughout the book.

Focus of Analysis

In order to shed light on the potential of the new South African constitution a number of questions need to be addressed.

Firstly, there are general questions concerning what kind of political instrument a constitution is. How does it exert influence? What conditions are favourable to constitutionalism? Constitutions differ on a number of dimensions, both with regard to normative choices and technical mechanisms, how does this affect their role in political life?

Secondly, the character of the new South African constitution must be established. This constitution is best understood from the perspective of the rivalling constitutional positions that stood against each other throughout the process and kneaded the constitution into its present shape. These positions, in turn, answer different interpretations of South African society and different sets of problems, and should be seen against the perceptions of society and the normative traditions that underlie each of them.

The focus of this book is on the two main rivalling positions throughout the process, represented by Arend Lijphart’s (1985) work ‘Power-Sharing in South Africa’, a classic consociational approach, and Albie Sachs’ (1990a) Protecting Human Rights in a New South Africa which can be seen as an attempt to apply liberal theories of justice to the South African context. The models represent, from an analytical point of view, the main approaches towards democratic constitutional design. Politically they cover the space within which the constitutional negotiations in South Africa have taken place.

The analysis seeks to understand the ways in which constitutions influence democratic performance and stability and to show how various constitutional models provide different answers to problems in South African society.

The analysis takes as a point of departure the major obstacles to democratic consolidation in South Africa as seen by different parties in the constitutional process. Particular attention is given to how the models respond to the problems of socioeconomic inequality and ethnic diversity. The precise effects of constitutional set-ups cannot be determined,² but is it possible to show how each institutional framework is directed against a particular set of problems and how it creates incentives for, and impediments against, various forms of political action. This assessment of the models in turn provides a basis for an evaluation of the new constitution, which can be seen as a compromise between the two.

Divergence with regard to institutional solutions is a consequence of conflicting normative concerns and perceptions of South African reality. The methodological and normative differences between the two models of constitutional design stand out against the background of contemporary political philosophy. The analysis explicates the implications of these differences for the acceptability of the models as constitutional frameworks.

The empirical focus is on South Africa, but the analysis is of relevance beyond this context. South Africa is unique in many respects due to the legacy of apartheid. Still, the problem focus of this study — the dynamics between ethnicity, poverty and inequality — is well known and acute throughout the world. ‘Ethnicity is at the centre of politics in country after country, a potent source of challenges to the cohesion of states and of international tension’ (Horowitz, 1985: xi).

The Structure of the Argument

The structure of the analysis is as follows. Part I focuses on fundamental problems that South Africa is facing, and for which address has been sought through constitutional design: crime and violence, poverty and inequality, and the potential of ethnic and racial tension. In Part H, the constitutional ‘solutions’ that have been the main rivals throughout the negotiation process are presented. In Part III the models are analysed, both in terms of their normative and theoretical acceptability, and in terms of their ability to contribute to a solution of the problems discussed in Part I. In Part IV this is used to analyse the constitution of 8 May 1996, and the process leading to its adoption. How is the constitution influenced by the two models? What are the consequences of this particular mix of elements? And what are the prospects for constitutionalism in South Africa?

Part I: Rivalling Realities

The entire constitution-making process in South Africa has taken place in a context of violence. During the early stages of the process political violence was rife, bordering on civil war. With the exception of the province of KwaZulu-Natal, the levels political violence dropped after the April 1994 elections. This was, however, replaced by a rocketing rate of violent crime. Violence is in itself a serious threat to democratic stability. It is also a symptom of underlying conflicts in society. The nature of these underlying conflicts is contested. Some speak of a culture of violence resulting from the brutality and the manipulation of the previous regime. Others emphasise structural factors as primary causes: persisting unemployment; poverty; inequality. These explanations have been challenged by those who see violence as a symptom of underlying racial and ethnic tension. This conflict of diagnoses goes beyond the issue of violence, it is a general conflict over the interpretation of the cleavage structure of South African society. What represents the greatest obstacle to democratic stability, class or ethnicity? This battle of ‘reality’ is crucial in understanding the different approaches to constitutional design.

Neither side denies the existence of poverty and vast social and economic inequality in South Africa, or that these are serious problems. Some see them, however, as secondary to ethnic conflict with respect to political stability. When it comes to the problem of ethnicity and ethnic conflict there is more controversy with regard to the ‘facts’. While ethnic heterogeneousness is undisputed, the political significance of ethnicity, and the potential for ethnic conflict in the future, is hotly contested.

In order to do justice to the constitutional models that have been set forth they should be seen against their own interpretation of South African reality — only then is their rationale and potential brought out.

Part II: The Quest for Solutions

Given the controversy over the interpretation of ‘facts’ it should come as no surprise that the constitutional solutions brought forward as a means to address the problems has differed. The second part of the book looks at ways in which one has tried to come to grips with the problems of ethnic tension and social and economic inequality by way of constitutional design.

Constitutionalism and constitutional design is discussed in general terms in Chapter 3. The assumptions on the role of constitutions as political instruments that underlie the analysis, is clarified and different conceptions of constitutionalism are discussed, explicating ways in which constitutional constraints operate, and the aims they seek to achieve. Thereafter, a conceptual framework is constructed, delineating dimensions on which constitutions vary.

The strategies for constitutional design presented in Chapters 4 and 5 fall in two categories. The first focuses on the question of justice. The central objective is to construct a constitutional structure which safeguards fundamental human rights for all individuals, and which works towards a just distribution of resources and opportunities.

The second approach, consociation or power-sharing models, focuses on the question of stability, and in particular on containment of ethnic conflict. Central characteristics of this approach are reliance on (ethnic) groups as the main political units; emphasis on proportionality — in legislative and executive bodies and in allocation of vital resources; and insistence on measures that facilitate decisions by consensus (e.g. minority vetoes and grand coalition governments). The models strive to minimise political stakes in the centre through decentralisation of political authority (federalism) by granting autonomy to the various groups. A central idea is that hard decisions should be lifted out of the central political bodies when possible, and the main role of the state should be that of a mediator between groups rather than an autonomous actor.

While the consociational models emphasise and elaborate on the electoral system, the focus of the justice model is on the legal system. The constitution should contain a bill of rights guaranteeing equal civil and political rights to all citizens, as well as provisions to ensure that social and economic rights are attended to — for instance by securing a firm constitutional foundation for affirmative action. A system of councils should be institutionalised for monitoring the enforcement of rights. And while consociational models emphasise the need for decisions by consensus, the justice model relies on majoritarian decision-making procedures, while emphasising the need to create a broad consensus on the basic norms underlying the political institutions. This consensus is to be advanced through establishing structures for civil society participation in the constitution-making process, and through ensuring that the political system has the perceived fairness needed to generate its own support.

In order to move towards distributive justice, the justice model underscores the need for a potent government. The implicit assumption is that a centralised state and extensive reliance on majority decisions is necessary in order to transform South African society into a fairer scheme of cooperation.

The two approaches coincide with the constitutional views of the main parties in the South African constitution-making process. The National Party has throughout the process had consociational and federal models as their preferred constitutional option, while leading sections of the ANC has opted for a majoritarian constitutional structure emphasising social justice.³

The two solutions differ not only in their institutional set-ups, but also with respect to ontology and methodological focus. The logic underlying each of the models is seen against a backdrop of normative political philosophy. By reading Sachs’ justice model as an application of John Rawls’ liberal theory of justice, and by showing how consociational models correspond to ideas of communitarian political philosophy, each model stands as a coherent structure. The normative differences are brought out and their consequences made clear so that they may be evaluated on their own terms.

Part III: Assessing the Contenders

The constitutional structure is the basic rules of society as legally defined, and regulates most areas of social life. An assumption underlying this book is that the chara...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Figures
• List of Tables
• List of Abbreviations
• Preface
• Acknowledgements
• Part I: Rivalling Realities
• Part II: The Quest for Solutions
• Part III: Assessing the Contenders
• Part IV: The ‘Final’ Constitution
• Appendix
• Bibliography
• Index