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South Africa’s Unconstitutional Constitution: The transition from power to lawful power

SAINT LOUIS UNIVERSITY LAW JOURNAL | VOLUME 41, FALL | 1997

About one month ago, the Constitutional Court of South Africa declared the Constitution of South Africa to be unconstitutional, which I think is a unique jurisprudential and political event in the world. I want to explain how this unusual thing came to pass.

We go back to 1990. We had to shift our country, which at that time was the epitome of division, repression, and injustice – a point of negative reference for anybody who wanted to condemn anything in the world. It was a country that introduced the word ‘apartheid’ to the English language and international human rights discourse. It was a country that sent death squads across its borders to hurt and torture people to death and that had an organised system of repression that extended into every village and into every nook and cranny of society. It was a country that was racist, authoritarian, and narrow.

Whereas before, we had the hour of the politician and the hour of the soldier, now we had the hour of the lawyer. This was our big moment. And for some things you really only have one chance; for us it was this moment – quite a long moment – and we had to make the best of it.

This very harsh, racist South Africa had to be converted into a country – with the same people, the same physical terrain, the same resources, and the same buildings – into a country that was democratic and respected human rights. It had to be a country where people of widely different backgrounds would respect each other, where everybody would live in dignity, and where social peace prevailed. This was a not a small task. Just through language you can trace the whole constitutional parabola that followed as we made the best of it. In those days, we used to speak about ‘the enemy’, later ‘the enemy’ became ‘the regime’, then ‘the regime’ became ‘the other side’, and now ‘the other side’ is simply ‘the opposition’.

At that same time, people like my comrade and later my colleague, Pius Langa, now Justice Langa [Langa served as deputy chief justice of the Constitutional Court from 2001 to 2005 and as chief justice from 2005 to 2009], were working, within the little space that the South African regime allowed, to bring progressive lawyers of all backgrounds together, not only to critique and challenge the apartheid legal order, but to envisage how law would work and how justice would be served in the new South Africa. All of us in our separate spheres were creating the germs of the constitutional order – in the lives, in the hearts and in the imaginations of countless individual people, so that it would not just be an abstraction when it came, but something already rooted, embryonic and growing.

The importance of a constitutional order was precisely to establish the appropriate relation between organised hope on the one hand, and structured caution on the other. These reflections were based on our life experiences, not on books or classroom lessons, or even talks like this one. We learned these things thinking about the heroism of the people around us, and also their setbacks and betrayals, and by looking at the inspiring emergence of new nations throughout the world, and seeing the difficulties they inherited as well as those they brought upon themselves.

While we were having these debates, Nelson Mandela, who first went to prison in 1962, was in contact with the South African regime, determined to initiate negotiations.

Leaping forward in time to the end of year 1991, I’m wearing this suit, which is the suit I wear for important occasions. I’m in the World Trade Centre outside Johannesburg, slightly different from the New York World Trade Centre – a real dump of a place, in fact, with gloomy, stale air and passionless carpets. I am in a space as big as this courtroom and across the way are other people in suits, perhaps more accustomed to wearing suits than I am. They are now the enemy/regime/South African government and perhaps they feel as strange looking at me as I feel when I look at them. These people had not even been on the scene when I went into exile; they later existed only as names to me, and now we were preparing to talk with each other. Not about whether or not to have a constitution, not ‘talks about talks’, the kind of talks in which Justice Langa had been directly involved in the past, but talks about the actual substance of an actual constitution.

Many outsiders can tell us how things are done in their country, what works there, what doesn’t work there, what’s useful, and what is not useful. But we have to look to our own needs, our own problems, our own possibilities and then we extract from other countries those things which we believe will work for us. We don’t model ourselves on any other country, but rather absorb and benefit from the experiences and the techniques used in other countries.

We battled over every tiny detail before those talks started, and not just over the agenda. For example: who would control the finances for the talks? The South African government said, ‘Well, we are in charge, we will pay for and manage the whole thing’. The side I was on said, ‘No – we have to have joint decision-making over the finances’. Who would provide the security? Again the government said, ‘Well, we have the security forces, we’ll handle the security issues’. The ANC group said, ‘No, it has to be joint security’. The ANC security forces and the South African government’s security – which had been trying to destroy each other for a long time, trying to find out about the inner workings of the other side, and sometimes quite literally trying to assassinate one another – were working side by side, for the very first time, to protect the process and to make sure that nobody participating in the process was killed. When it came to administrative issues such as who would type up the agendas, the South African government said, ‘Well, we’ve got secretaries, we’ll do that’. The ANC side replied, ‘No, we will have one, and you will have one’. It was like Noah’s ark, we entered the building two by two. I think the only concession made was on the catering, where an outside firm was employed at government expense.

The psychological importance of the battle over these little details cannot be fully communicated; the more banal the issue, the more it represented the unconscious habits of power.

When you have ruled a country, been the boss, been in charge, as your parents were and your grandparents were, and power came out of the barrel of a gun and then through a kind of intellectual/administrative hegemony for centuries afterwards – to suddenly have the formerly dominated and oppressed saying ‘no’ is quite a shock. When it came to negotiations, the structure and organisation functioned on the basis of engagement between equals. This helped right from the word go to establish the tone and the setting for the intellectual discussions that followed.

Then, there was a widespread assumption that the other side was more experienced in government and constitutional matters, and maybe the ANC required some help from foreign experts. We received many offers of assistance from governments throughout the world to ‘level the playing fields’. Perhaps we were arrogant, but we had been through the mill. We had thought, studied, argued, debated, and lived in exile in so many different countries on all the different continents. We had seen how governments worked. Maybe this was one of the few benefits of exile. We could speak all the different languages. We were able to bring all of that together. We were much stronger intellectually, and much more strategically organised than the other side. We suggested politely that if they wished to ‘level the playing fields’, they should help the South African government.

Soon there was a crisis. We agreed on the process for decision-making and invented some rather interesting terms, such as decision-making by ‘sufficient consensus’; that is, enough agreement for the process to go forward.

The negotiators consisted of self-constituted political parties, the South African government, parties inside parliament and all the different administrations and governments set up to support the apartheid policies. On the other side was the liberation movement in its various formations. We had no mandates. There was one party, called the Minority Freedom Front, which had one member in the racist parliamentary structure. This poor chap had to run around from one commission to the other to make sure his voice was heard everywhere. He happened to be a rather talkative person, so an outsider could be forgiven for thinking that he was running the entire negotiations. He came from the same city as Justice Langa – a city famous for the eloquence of its inhabitants.

The first crisis centred upon how the Constitution was to be drafted. Should all of us who were sitting around the table – coming from all the different backgrounds in South Africa – should we draft the Constitution and then put it to the nation in a referendum to give it legitimacy? That was the argument from the South African government and some of their allies. They claimed that that was the purpose of a Constitution – to protect minorities and to make sure the interests of everybody were recognised. The other faction, the ANC-led grouping, said, no, the fundamental constitutional problem in South Africa for centuries had been that the majority of the people were not allowed to decide the type of government they were to live under. It was essentially a problem of self-determination, and unless we held elections to create a constitution-making body that had a mandate from the entire nation, the product which emerged would have no legitimacy and no authority. Then the first group responded: ‘But what about us? We will be handing over power to fifty per cent plus one of the people, and they will do what we did to them’.

In other words, they argued that because they had behaved so badly in the past, they needed to write the Constitution to prevent retaliation in the future. Yet, they had a point, an important point, because the Constitution is for the whole nation. Everybody should feel protected by its character and substance.

How were we to reconcile these different approaches? They were not just minor differences, they affected the whole character of the constitutional negotiations. Our answer was to have a two-stage process of constitution-making. The first stage was to agree on the process of transition, including elections and the basis for the elections; to establish a new government, a new parliament which would elect a new president; and to have a Bill of Rights that would function in the meanwhile to protect fundamental rights.

The second stage would be to entrust the new democratically elected parliament [both houses meeting together] with a constitution-making function within a framework of principles we could agree on in negotiations there and then. A two-thirds majority of parliament would be required for adoption. These agreed-upon principles would ensure that the Constitution which emerged was a democratic one that guaranteed fundamental rights and freedoms for everybody and took account of specific interests and concerns of all the negotiating parties.

We ended up with thirty-four principles. Some of them read very, very oddly. You will find no clear logic to the whole set of principles, except the logic of being as inclusive as possible to make everybody feel protected in the process.

Four years later, it was the Constitutional Court of South Africa that had to measure these thirty-four principles against the new text developed over a two-year period in parliament. Parliament worked literally day and night to draft the new Constitution. Two years were hardly enough, yet if you didn’t have a cut-off date the process would have gone on forever as people argued about every comma, every word. They were lucky it was a leap year – that gave them one extra day – maybe they would not have finished without that extra day! After working night after night, at the end of the two years, the text was ready to send up to the Constitutional Court.

Who were we, the judges of the Constitutional Court? I want to conclude with a coda of how we were formally inaugurated in a rather small and completely packed room with the eleven judges sitting in a row in the back. The president of the country was sitting with us. The former Minister of Justice, who had been responsible for locking up so many of us, for issuing the banning orders, was also sitting there, as was the new Speaker of the House, and the person who had been presiding over the Constitutional Assembly’s drafting of the new Constitution.

Dignitaries, judges and their families, from all over the country, were jam-packed into this room, and Nelson Mandela rises and says: ‘The last time I stood up in court was to find out if I was going to be hanged; today I stand up to inaugurate South Africa’s first Constitutional Court’. To show our appreciation, eight months later we struck down two presidential proclamations issued by Nelson Mandela.

These were important proclamations – dealing with the foundations, structures and institutional arrangements necessary for South Africa’s first democratic elections at the local government level. To summarise a complicated argument [Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others (CCT 27/95) [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC)], in which a number of different decisions were given, we basically determined that the presidential proclamations were issued in a way that usurped the functions of parliament. Even if parliament had authorised the president to issue the proclamations – their subject matter indicated that they purported to do that – it was something that only parliament itself could do, following proper parliamentary procedures. Therefore the proclamations were unconstitutional. [This case is dealt with in greater detail in Section 7: A New African Jurisprudence: From abstract judicial rulings to purposive transformative jurisprudence.] President Nelson Mandela reacted by saying that he had acted on legal advice which he had accepted as correct at the time, but he could now accept that the legal advice was wrong. He then went on to say that he fully accepted the decision of the Court, and would reconvene parliament to pass the necessary legislation, adding that we now lived in a constitutional state, where no one was above the law.

Mandela said that he, as president, should be the first to show respect for the Constitution as interpreted by the Court. Some commentators observed that, with the great style and aplomb he had, he converted what others would have seen as a political defeat into a kind of victory, as if to say, ‘you see what a marvellous country I am the president of?’ It made everybody feel secure and it certainly helped to establish the legitimacy of the Constitutional Court.

I opened by saying that in October of the next year, this Court of which I’m proud to be a member, declared the Constitution of South Africa to be unconstitutional. We did that because we saw that although the document was a product of the new South Africa – and it established a democratic organisation of our society, set up organs of accountable government and protected fundamental rights – it nevertheless failed to comply completely with the previously agreed-to thirty-four principles. In nine respects, it was deficient, and therefore we could not certify that this new Constitution complied with the principles.

The text went back to parliament. Provisions were made, amongst other things, to increase the powers of the provinces and to more fully safeguard the independence of the Public Protector.

The amended text came back to us. We were now in a position to certify the text as meeting all the constitutional requirements.

On 10 December, which you know is Human Rights Day, at a moving public ceremony at Sharpeville, the scene of a brutal massacre in 1960, with many of the survivors of the massacre present, Nelson Mandela signed the new Constitution, and we now live under what we hope has not too inaccurately been called the world’s most enlightened Constitution.