In search of Hercules: Democracy, constitutionalism and the South African Constitutional Court

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....