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)


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.


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.


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.  


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
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.
Belgium-Germany Border Remains Porous, Even As Manhunt For Paris Attacker Continuesi
Ayesha Tanzeem
November 25, 2015 10:46 PM
One of the suspected gunmen in the Nov. 13 Paris attacks, Salah Abdeslam, evaded law enforcement, made his way to Belgium, and is now believed to have fled to Germany. VOA correspondent Ayesha Tanzeem makes the journey across the border from Belgium into Germany to see how porous the borders really are.

Video Belgium-Germany Border Remains Porous, Even As Manhunt For Paris Attacker Continues

One of the suspected gunmen in the Nov. 13 Paris attacks, Salah Abdeslam, evaded law enforcement, made his way to Belgium, and is now believed to have fled to Germany. VOA correspondent Ayesha Tanzeem makes the journey across the border from Belgium into Germany to see how porous the borders really are.

Video Islamic State Unfazed by Losses in Iraq, Syria

Progress in the U.S.-led effort to beat Islamic State on its home turf in Iraq and Syria has led some to speculate the terror group may be growing desperate. But counterterror officials say that is not the case, and warn the recent spate of terror attacks is merely part of the group’s evolution. VOA National Security correspondent Jeff Seldin has more.

Video Taiwan Looks for Role in South China Sea Dispute

The Taiwanese government is one of several that claims territory in the hotly contested South China Sea, but Taipei has long been sidelined in the dispute, overshadowed by China. Now, as the Philippines challenges Beijing’s claims in an international court at The Hague, Taipei is looking to publicly assert its claims. VOA’s Bill Ide has more from Beijing.

Video Syrian Refugees in US Express Concern for Those Left Behind

Syrian immigrants in the United States are concerned about the negative tide of public opinion and the politicians who want to block a U.S. plan to accept 10,000 Syrian refugees. Zlatica Hoke reports many Americans are fighting to dispel suspicions linking refugees to terrorists.

Video After Paris Attacks, France Steps Up Fight Against IS

The November 13 Paris attacks have drawn increased attention to Syria, where many of the suspected perpetrators are said to have received training. French President Francois Hollande is working to build a broad international coalition to defeat Islamic State in Syria and in Iraq. Zlatica Hoke reports.

Video US, Cambodian Navies Pair Up in Gulf of Thailand

The U.S. Navy has deployed one of its newest and most advanced ships to Cambodia to conduct joint training drills in the Gulf of Thailand. Riding hull-to-hull with Cambodian ships, the seamen of the USS Fort Worth are executing joint-training drills that will help build relations in Southeast Asia. David Boyle reports for VOA from Preah Sihanouk province.

Video Americans Sharpen Focus on Terrorism

Washington will be quieter than usual this week due to the Thanksgiving holiday, even as Americans across the nation register heightened concerns over possible terrorist threats. VOA’s Michael Bowman reports new polling data from ABC News and the Washington Post newspaper show an electorate increasingly focused on security issues after the deadly Islamic State attacks in Paris.

Video World Leaders Head to Paris for Climate Deal

Heads of state from nearly 80 countries are heading to Paris (November 30-December 11) to craft a global climate change agreement. The new accord will replace the Kyoto Protocol on Climate Change that expired in 2012.

Video Uncertain Future for Syrian Refugee Resettlement in Illinois

For the trickle of Syrian refugees finding new homes in the Midwest city of Chicago, the call to end resettlement in many U.S. states is adding another dimension to their long journey fleeing war. Organizations working to help them integrate say the backlash since the Paris attacks is both harming and helping their efforts to provide refugees sanctuary. VOA's Kane Farabaugh reports.

Video Creating Physical Virtual Reality With Tiny Drones

As many computer gamers know, virtual reality is a three-dimensional picture, projected inside special googles. It can fool your brain into thinking the computer world is the real world. But If you try to touch it, it’s not there. Now Canadian researchers say it may be possible to create a physical virtual reality using tiny drones. VOA’s George Putic reports.

Video New American Indian Village Takes Visitors Back in Time

There is precious little opportunity to experience what life was like in the United States before its colonization by European settlers. Now, an American Indian village built in a park outside Washington is taking visitors back in time to experience the way of life of America's indigenous people. Carol Pearson narrates this report from VOA's June Soh.

Video Even With Hometown Liberated, Yazidi Refugees Fear Return

While the northern Iraqi town of Sinjar has been liberated from Islamic State forces, it's not clear whether Yazidi residents who fled the militants will now return home. VOA’s Mahmut Bozarslan talked with Yazidis, a religious and ethnic minority, at a Turkish refugee camp in Diyarbakır. Robert Raffaele narrates his report.

Video Nairobi Tailors Make Pope Francis’ Vestments

To ensure the pope is properly attired during his visit, the Kenya Conference of Catholic Bishops asked the Dolly Craft Sewing Project in the Nairobi slum of Kangemi to make the pope's vestments, the garments he will wear during the various ceremonies. Jill Craig reports.

Video Cross-Border Terrorism Puts Europe’s Passport-Free Travel in Doubt

The fallout from the Islamic State terror attacks in Paris has put the future of Europe’s passport-free travel area, known as the "Schengen Zone," in doubt. Several of the perpetrators were known to intelligence agencies, but were not intercepted. Henry Ridgwell reports from London European ministers are to hold an emergency meeting Friday in Brussels to look at ways of improving security.

Video El Niño Brings Unexpected Fish From Mexico to California

Fish in an unexpected spectrum of sizes, shapes and colors are moving north, through El Niño's warm currents from Mexican waters to the Pacific Ocean off California’s coast. El Nino is the periodic warming of the eastern and central Pacific Ocean. As Faiza Elmasry tells us, this phenomenon thrills scientists and gives anglers the chance of a once-in-a-lifetime big catch. Faith Lapidus narrates.

Video Terrorism in Many Forms Continues to Plague Africa

While the world's attention is on Paris in the wake of Friday night's deadly attacks, terrorism from various sides remains a looming threat in many African countries. Nigerian cities have been targeted this week by attacks many believe were staged by the violent Islamist group Boko Haram. In addition, residents in many regions are forced to flee their homes as they are terrorized by armed militias. Zlatica Hoke reports.

Video Study: Underage Marriage Rate Higher for Females in Pakistan

While attitudes about the societal role of females in Pakistan are evolving, research by child advocacy group Plan International suggests that underage marriage of girls remains a particularly big issue in the country. VOA’s Ayesha Tanzeem reports how such marriages leads to further social problems.

VOA Blogs