News

ANC to Review South Africa's 'Model' Constitution

Chairman of the Constitutional Assembly, Cyril Ramaphosa, left, holds up a copy of the country's new constitution, was signed by President Nelson Mandela, right, in Sharpville, December 10, 1996. (file photo)
Chairman of the Constitutional Assembly, Cyril Ramaphosa, left, holds up a copy of the country's new constitution, was signed by President Nelson Mandela, right, in Sharpville, December 10, 1996. (file photo)

Multimedia

Audio
Delia Robertson

This is Part Three of a seven-part series on African constitutions

Continue to Parts:     1 / 2 / 3 / 4 / 5 / 6 / 7

In December, 1996 former South African President Nelson Mandela signed into law the country’s new constitution - a document which experts from around the globe frequently hold up as a model for other countries.  But the government has announced a review of the decisions of the constitutional court, which is the custodian of the constitution. 

Mandela chose to sign South Africa’s founding law at a ceremony in Sharpeville, south of Johannesburg, where on March 21, 1961, 69 protestors lost their lives to the guns of apartheid.  He did so, he said, because the constitution was an embodiment of the principles that aimed to overturn the worst of the country’s past.

South Africa’s constitution was drafted by both houses of parliament sitting as a constitutional assembly between 1994 and 1996.  The process involved a countrywide public participation campaign which solicited citizens’ views.  While South African constitutional lawyers were the main drafters, they also sought input from global experts.

Modern

Pierre de Vos, who teaches constitutional law at the University of Cape Town, says the document is modern in the way that it regulates the separation of powers of the three branches of government.

But De Vos says the Bill of Rights is also progressive because it not only protects citizens from the excesses of the state, it also, in some cases, requires the government to protect the public interest from other institutions such as large companies.

“And with that goes the inclusion of limited but important social economic rights protections, which places duties on the state in effect to work towards a more fair and egalitarian society,” De Vos explained.

World leader

South Africa’s Constitutional Court has been the arbiter and guardian of the principles in this document for the past 14 years and many legal and ethics experts - including Eusebius McKaiser, associate at the University of the Witwatersrand’s Centre for Ethics - say it has done a very good job.

“Our socio-economics rights cases around housing, around health in particular have been spectacular; we are world leaders when it comes to courts putting pressure on the executive to justify why they are not progressively realizing socio-economic rights in particular instances,” McKaiser said.

The court has in a number of cases ruled against both government departments and President Jacob Zuma.

Most recently it ruled President Zuma and the government did not follow constitutional requirements in establishing an independent serious crimes unit and in appointing the head of the National Prosecuting Authority.

The response from the ruling African National Congress government has been that the court has become politically activist.

Audit

So now the government has announced an audit of court decisions to determine if the court is following its constitutional mandate to advance a fair and equal society.   The audit will also cover rulings from the Supreme Court of Appeal.

De Vos says the constitutional court can stand up to an honest scrutiny.

“I think any serious and honest assessment of the constitutional courts judgements will show that it has actually been quite progressive in advancing social justice issues and that perhaps more so than the government itself, it has been on the side of the marginalized and the dispossessed,” De Vos said.

But Zuma's government isn't happy and academic de Vos says that hovering in the background is the personal interest of Zuma and that this should never be underestimated.  Zuma has advocated for an amendment to the constitution to remove the power of the constitutional court to review government policies and actions.  

Supremacy

De Vos says this would gravely undermine the rights guaranteed in the founding law and change South Africa’s system of democracy to one of parliamentary supremacy.

“All these things that make a democracy work properly [are] then at the behest of the majority party in parliament, who can infringe and take away any of these rights that will -make it,- diminish the democracy at best, and at worst will completely hollow out the democracy,” De Vos said.

De Vos says constitutional supremacy is one of the founding principles which can only be changed by a 75 percent majority in the national assembly.  At present the dominant ANC currently has a majority of 65.9 percent.  Observers such as Mckaiser say that in the foreseeable future it is unlikely the ANC will attain sufficient voter support to reach even 70 percent.

“The government will never have in our lifetime again, it would be extremely, extremely unlikely, I’m prepared to say never again, to have a majority as high as up to close to 70 percent, so they will certainly not muster 75 percent within the national parliament to be able to make changes to the foundational elements of the constitutional text,” McKaiser said.

However if at any time, the president of the day was able to capture the court by appointing a sufficient number of judges sympathetic to the dominant party, it would be technically possible for the court to diminish or even disallow its current oversight role.

Expert Pierre de Vos says that now this is unlikely to occur.  But he and others warn that if it were to happen it would be tantamount to abrogating the promise made by Mandela in 1996 when he said that the rights guaranteed in the constitution must “be enshrined beyond the power of any force to diminish.”


Constitutional changes in African countries within the last few years:

- Burundi in 2005 to outline power-sharing arrangements between ethnic groups.
- Chad in 2005 to eliminate presidential term limits; move benefits President Idriss Deby.
- Uganda in 2005 to establish a multi-party political system and eliminate presidential term limits; latter move has benefited President Yoweri Museveni.
- Cameroon in 2008 to remove a presidential two-term limit; move benefits President Paul Biya.
- Angola in 2010 to provide for direct election of the president and national assembly, and to spell out presidential powers exercised by longtime leader Jose Eduardo dos Santos.
- Guinea in 2010 to allow new elections after the toppling of a military junta.
- Kenya in 2010 to include a bill of rights and de-centralize political power; change followed deadly post-election violence in 2008.
- Democratic Republic of Congo in 2011 to eliminate run-offs in presidential elections; the system helped Joseph Kabila win re-election in November.
- Equatorial Guinea in 2011 to impose a presidential two-term limit, remove a presidential age limit, and create a vice president's post -- changes backed by President Teodoro Obiang Nguema.
This forum has been closed.
Comment Sorting
Comments
     
by: conservative faminist
March 30, 2012 12:28 PM
let us have some form of uniting princle for all soomalia (federal constitution) and also have regional constiturion that honers the locals and their customs. once we have something going we can always ammend it to make it workable. is that so hard of a concept to understand ? can we stop rejecting everything out of hand ? it is possible for once to not be so defensive about foreing influence ? specially when you could not figured it out for yourself for 20yrs

Featured Videos

Your JavaScript is turned off or you have an old version of Adobe's Flash Player. Get the latest Flash player.
Olympics Construction Scars Sacred Korean Mountaini
X
July 02, 2015 4:10 AM
Environmentalists in South Korea are protesting a Winter Olympics construction project to build a ski slope through a 500-year-old protected forest. Brian Padden reports that although there is strong national support for hosting the 2018 Pyeongchang Winter Olympics, there are growing public concerns over the costs and possible ecological damage at the revered mountain.
Video

Video Olympics Construction Scars Sacred Korean Mountain

Environmentalists in South Korea are protesting a Winter Olympics construction project to build a ski slope through a 500-year-old protected forest. Brian Padden reports that although there is strong national support for hosting the 2018 Pyeongchang Winter Olympics, there are growing public concerns over the costs and possible ecological damage at the revered mountain.
Video

Video Xenophobia Victims in South Africa Flee Violence, Then Return

Many Malawians fled South Africa early this year after xenophobic attacks on African immigrants. But many quickly found life was no better at home and have returned to South Africa – often illegally and without jobs, and facing the tough task of having to start over. Lameck Masina and Anita Powell file from Johannesburg.
Video

Video Family of American Marine Calls for Release From Iranian Prison

As the crowd of journalists covering the Iran talks swells, so too do the opportunities for media coverage.  Hoping to catch the attention of high-level diplomats, the family of American-Iranian marine Amir Hekmati is in Vienna, pleading for his release from an Iranian prison after nearly 4 years.  VOA’s Heather Murdock reports from Vienna.
Video

Video UK Holds Terror Drill as MPs Mull Tunisia Response

After pledging a tough response to last Friday’s terror attack in Tunisia, which came just days before the 10th anniversary of the bomb attacks on London’s transport network, British security services are shifting their focus to overseas counter-terror operations. VOA's Henry Ridgwell has more.
Video

Video Obama on Cuba: This is What Change Looks Like

President Barack Obama says the United States will soon reopen its embassy in Cuba for the first time since 1961, ending a half-century of isolation. VOA White House correspondent Luis Ramirez reports.
Video

Video Hate Groups Spread Influence Via Internet

Hate groups of various kinds are using the Internet for propaganda and recruitment, and a Jewish human rights organization that monitors these groups, the Simon Wiesenthal Center, says their influence is growing. The messages are different, but the calls to hatred or violence are similar. VOA's Mike O’Sullivan reports.
Video

Video US Silica Sand Mining Surge Worries Illinois Residents, Businesses

Increased domestic U.S. oil and gas production, thanks to advances known as “fracking,” has created a boom for other industries supporting that extraction. Demand for silica sand, used in fracking, could triple over the next five years. In the Midwest state of Illinois, people living near the mines are worried about how increased silica sand mining will affect their businesses and their health. VOA’s Kane Farabaugh has more in this first of a series of reports.
Video

Video Blind Somali Journalist Defies Odds in Mogadishu

Despite improving security in the last few years, Somalia remains one of the most dangerous countries to be a journalist – even more so for someone who cannot see. Abdulaziz Billow has the story of journalist Abdifatah Hassan Kalgacal, who has been reporting from the Somali capital for the last decade despite being blind.
Video

Video Texas Defies Same-Sex Marriage Ruling

Texas state officials have criticized the US Supreme Court decision giving same-sex couples the right to marry nationwide. The attorney general of Texas says last week's decision did not overrule constitutional "rights of religious liberty," and therefore officials performing wedding services can refuse to perform them for same-sex couples if it is against their religious beliefs. Zlatica Hoke reports on the controversy.
Video

Video Rabbi Hits Road to Heal Jewish-Muslim Relations in France

France is on high alert after last week's terrorist attack near the city Lyon, just six months after deadly Paris shootings. The attack have added new tensions to relations between French Jews and Muslims. France’s Jewish and Muslim communities also share a common heritage, though, and as far as one French rabbi is concerned, they are destined to be friends. From the Paris suburb of La Courneuve, Lisa Bryant reports about Rabbi Michel Serfaty and his friendship bus.
Video

Video Saudi Leaks Expose ‘Checkbook Diplomacy’ In Battle With Iran

Saudi Arabia’s willingness to wield its oil money on the global diplomatic stage appears to have been laid bare, after the website WikiLeaks published tens of thousands of leaked cables from Riyadh’s Ministry of Foreign Affairs. VOA's Henry Ridgwell reports.
Video

Video In Kenya, Police Said to Shoot First, Ask Questions Later

An organization that documents torture and extrajudicial killings says Kenyan police were responsible for 1,252 shooting deaths in five cities, including Nairobi, between 2009 and 2014, representing 67 percent of all gun deaths in the areas reviewed. Gabe Joselow has more from Nairobi.

VOA Blogs