In search of Hercules: Democracy, constitutionalism and the South African Constitutional Court
Date
1996-10-07
Authors
Van Huyssteen, Elsa
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Abstract
The Interim Constitution of South Africa which came into effect on 27 April 1994 established
a new law-government relationship characterised by constitutionalism, a relationship which
will be confirmed by the final Constitution. Constitutionalism subordinates the decisions and
actions of a democratically elected legislature to the constitution and the body responsible for
enforcing it (2) In South Africa, this body is the Constitutional Court (3). Constitutionalism is a
fundamental element of liberal legal ideology, and a widely accepted model of liberal
democracy, as it is argued that only in this way can certain rights which are fundamental to
the successful operation of a democracy be protected from the transient will of the majority (4). However, in both the African and the South African contexts the merits of constitutionalism
are not that readily accepted. Okoth-Ogendo documents the "emphatic rejection of the
classical notion of constitutionalism" (5) by the majority of African states, and Nolutshungu
points out that the idea of constitutionalism was not one "easily found in the discourse of the
South African liberation movement" (6). And indeed when the eleven judges on the new South
African Constitutional Court, in the first case before them, unanimously declared the death
penalty unconstitutional (7), it provoked a public outcry and wide-spread condemnation of the
decision as undemocratic and contrary to the will of the majority, accompanied by calls for a referendum on the issue (8). This illustrated that a large number of South Africans might not
understand or like the system of constitutionalism, as they believe that democracy means that
the majority gets what it wants. This tension between constitutionalism and popular
democracy is noted by Dennis Davis when he asks : "can it not be argued that a body that has
not been elected, and is not otherwise politically responsible to an electorate, is undermining
democracy by telling a democratically elected body what it can and cannot do ?" (9).
This paper will argue that there is indeed a tension between constitutionalism and the aims of
popular democracy, and that the commitment to constitutionalism on the part of all the
significant political parties in South Africa is a central feature of the elite-pacted nature of the
transition to democracy. Du Plessis and Corder note the growing enthusiasm, in the late
eighties, for human rights and constitutionalism in National Party (NP) and government
circles, as a result of the realisation that this can be a very effective way of protecting vested
interests during and after the transition (10). During the process of negotiations, the model of
democracy proposed by the African National Congress (ANC) changed dramatically from an
emphasis on a strong central state, popular democracy and a high degree of participation, to
a commitment to decentralisation of power, liberal democracy and constitutionalism.
It will also be argued, however, that constitutionalism is not inherently incompatible with
popular democratic ideology, and that it can in fact be a way of broadening the base of popular
participation in government as well as a way of entrenching government accountability,
especially in the arena of human rights. This view of constitutionalism accommodates the
popular democratic demand for a central role for civil society in the process of democratisation
and the subsequent consolidation of democracy (11). The purpose of this paper is thus clearly not
to condemn constitutionalism. On the contrary, it is based on an acceptance of the need for
the protection of human rights and the development of a human rights culture in the context
of the heterogeneous and historically strife-torn South African society. There is reason for
concern, however, about the legitimacy of constitutionalism as a system of government in the
eyes of the majority of South Africans, as illustrated by public reaction to the death penalty
decision and other decisions that affect the criminal law (12), and it is therefore important to
investigate the possibility of reconciling constitutionalism, as an institution of liberal
democracy, and the aims of popular democracy in South Africa.
A central assumption of this paper is that the solution to the tension between constitutionalism
and popular democratic ideology in South Africa lies in the concept of human rights, particularly social and economic rights, as it can expand the base of civil society participation
in government and entrench government accountability, but this will depend on the level of
legal mobilisation (13) in civil society and, importantly, on the way in which the Constitution is
interpreted....
Description
African Studies Seminar series. Paper presented 7 October 1996
Keywords
Constitutional history. South Africa, South Africa. Constitutional law, Constitutional law. South Africa