South Africa’s Constitution

26 May 2008

1116

South Africa’s Constitutional Court, which
upholds the Constitution, at night. As the
supreme law of the country, the
Constitution binds all organs of the state –
legislative, executive and judicial – at all
levels of government.
(Image: Chris Kirchhoff,
MediaClubSouthAfrica.com. For more free
photos, visit the image library)

South Africa’s Constitution, admired and respected around the world for its pioneering approach to human rights, is the symbol of a remarkable negotiated transition – one that turned a country ravaged by apartheid and oppression into one that celebrates democracy and freedom.

The interim Constitution, which came into effect in 1994, not only set the stage for South Africa’s first democratic elections, but was – as the document itself explained – “a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex”.

Background to the Constitution

The interim Constitution was negotiated between representatives of organisations involved in the liberation struggle, political parties and other groups. After the first democratic elections on 27 April 1994, the elected representatives, meeting as a body called the Constitutional Assembly, drafted a new Constitution. In 1996, after two years of public consultation and much debate, the final Constitution was at last adopted.

See the Constitutional Court’s website for more about the history of the Constitution.

Constitutional supremacy

Section 2 of Chapter 1 – which is entitled “Supremacy of Constitution” – states: “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

Although South Africa did have a constitution before the interim Constitution of 1994 and the final Constitution of 1996, the “tri-cameral” constitution (which established three separate houses of parliament for whites, coloureds and Indians) was not supreme. Instead, a system of parliamentary sovereignty prevailed – which meant the legislature could pass any laws it liked, as long as the correct procedure was followed.

Nowadays, however, the Constitution is superior to Parliament and is the yardstick by which all laws and acts of state are judged. It applies to all organs of government – including Parliament, the Presidency, the police force, the army and the public service. This means any law that violates the Constitution, or any conduct that conflicts with it, can now be challenged and struck down by the courts – most notably the Constitutional Court, which is the highest court in the land when it comes to constitutional matters.

Constitutional entrenchment

The Constitution itself is protected, which means it is harder for the legislature to change it than is the case with ordinary legislation.

Section 74(2) states that bills amending the Constitution require a two-thirds majority in the National Assembly as well as a supporting vote of six of the nine provinces represented in the National Council of Provinces.

However, a bill amending Section 1 of the Constitution, which sets out the founding values, requires a 75 percent majority.

Constitutional rights

Human rights occupy pride of place in the Constitution. The preamble refers to fundamental rights and the first section of Chapter 1 (Founding Provisions) says South Africa is founded on: “Human dignity, the achievement of equality and the advancement of human rights and freedoms”.

Chapter 2 contains South Africa’s Bill of Rights. It is this part of the Constitution that has attracted the greatest interest – and has had the greatest impact on South Africans – in the past few years.

The first words of the chapter introduce the Bill of Rights as a “cornerstone of democracy” that “enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”.

Among the rights enshrined in the Bill of Rights are the right to life, equality, human dignity, freedom of expression, freedom of religion, freedom of association, political rights and the right to peaceful assembly and demonstration. These are the usual “first generation” rights that are guaranteed in most democratic countries.

However, a distinctive feature of our right to equality is that it includes a prohibition against unfair discrimination based on sexual orientation – making South Africa the first nation in the world to insert such a clause.

Our Bill of Rights also contains socioeconomic rights, or “second generation” rights. They place a duty on the government to work to provide education, health services, water and housing.

The last group of rights in the Bill of Rights – the “third generation” rights – often attract praise for our Constitution. They include the right to having the environment protected, the right of access to information and the right to just administrative action.

Another special feature of our Bill of Rights – and one it shares with the Canadian Charter of Rights and Freedoms – is the limitations clause, which allows competing and conflicting rights to be balanced. Section 36 of the Constitution (headed “Limitation of rights”), lays down a test that any limitation must meet. The two central concepts are reasonableness and proportionality: any restriction on a right must be reasonable and must be proportional in that the impact or extent of the restriction must match the importance of the aim served by the limitation of the right.

The rights conferred by the Constitution have been the basis of a number of groundbreaking cases. For examples of South Africa’s recent human-rights jurisprudence, see the Constitutional Court website’s discussion of rights for women, children, workers and gays and lesbians.

Institutions to support democracy

A significant feature of our Constitution is that it sets up several independent bodies to support and safeguard democracy. These are often referred to as the “Chapter 9 institutions”, because they have their origins in that part of the Constitution. These are:

Structure and other contents

Other than a preamble at the beginning and seven schedules at the end, the Constitution is arranged into 14 chapters, namely:

Chapter 1: Founding Provisions (sections 1-6)
Chapter 2: Bill of Rights (sections 7-39)
Chapter 3: Cooperative Government (sections 40-41)
Chapter 4: Parliament (sections 42-82)
Chapter 5: The President and National Executive (sections 83-102)
Chapter 6: Provinces (sections 103-150)
Chapter 7: Local Government (sections 151-164)
Chapter 8: Courts and Administration of Justice (sections 165-180)
Chapter 9: State Institutions Supporting Constitutional Democracy (sections 181-194)
Chapter 10: Public Administration (sections 195-197)
Chapter 11: Security Services (sections 198-210)
Chapter 12: Traditional Leaders (sections 211-212)
Chapter 13: Finance (sections 213-230A)
Chapter 14: General Provisions (sections 231-243)

Chapters 3 to 7 detail the country’s democratic system of government, one characteristic of which is the stress on interaction between the national, provincial and local levels through the mechanism of cooperative governance.

Other important characteristics are those generally considered essential to democracy, such as the specification of the manner in which representatives are elected, limitations on terms of office, and the majorities required to pass legislation.

The Constitution goes on to deal with the courts and administration of justice, public administration, security services (defence, police and intelligence), the role of traditional leaders and finance.

The final chapter covers general provisions, including international agreements and international law. Among other things, the final chapter requires that all constitutional obligations “be performed diligently and without delay”.

Coming late to democracy, South Africa was able to draw on the collective wisdom of the democratic countries of the world in creating its Constitution. Having come along a route of struggle and pain, the country took the process deeply to heart – and takes great pride in the result.