Constitutional democracy in South Africa – 20 years old but still growing

Cape Town, 25 July 2014

The lengthy and often very tense constitutional negotiation process in the early nineties in South Africa inevitably included various compromises in shaping the constitutional system of South Africa. The peaceful transition from the old order to establish an inclusive constitutional democracy in 1994 is often referred to as a miracle, which it was. Political violence in parts of the country and mistrust between political opponents could easily have led the country on another road, but fortunately strong leadership and a will to find workable solutions prevailed. While the political leaders continued with the constitutional negotiations the churches and the business community joined hands in forming the national peace accord which was a massive society based initiative that made a significant contribution to the peaceful transition.

One of the most important milestones in this journey was the 2 February 1990 speech by the then President FW De Klerk to set all political prisoners free and to unban political organisations. This brave step created the opportunity for real negotiations about the country’s future to start.

One of the breakthroughs in the negotiation process was the adoption of a set of 34 Constitutional Principals in 1993, which was perhaps the most significant compromise since it paved the way for the further development of the new constitutional order. The interim Constitution came into operation on 27 April 1994 and the newly elected Constitutional Assembly had the task to design a new constitution that would comply with these 34 Constitutional Principles.i In 1996 the current Constitution (Constitution of the Republic of South Africa, 1996) was certified by the newly established Constitutional Court to be in compliance with this framework.ⁱⁱ

Since 1994 the South African constitutional system is characterised by the principle of supremacy of the constitution, in contrast to the system of parliamentary sovereignty before 1994. This is stipulated in sec.1 of the Constitution and confirmed in sec.2, which states that ‘all law or conduct inconsistent with the Constitution is invalid’. It is based on the German concept of a Rechtsstaat, which is now also formally part of South Africa’s constitutional system.

The constitutional system described in the Constitution has various federal characteristics, but the practice is rather an integrated or co-operative system of government in which the balance of powers vests in the national sphere of government. Most of the tax sources are also allocated to the national sphere of government. A unique feature is the principles of co-operative government and intergovernmental relations contained in Chapter 3 of the Constitution. It provides the constitutional framework within which the three spheres of government, i.e. national, provincial and local, must function and interact with each other. These principles are based on the concept of Bundestreue developed by the German Bundesverfassungsgericht over many years.ⁱⁱⁱ One of the nine provinces, Western Cape, is governed by the major opposition political party, namely the Democratic Alliance, while the other eight provinces are governed by the African National Congress, which is also in power in the national government. At local government level there is more diversity including coalitions in many municipalities.

The architecture of the constitutional system has the following features:

• Supremacy of the constitution (sec.1,2 of the Constitution of South Africa, 1996);

• A justiciable bill of rights (sec.7-39);

• Three spheres of government – national, provincial (9 provinces) and local government (sec.40);

• A division of powers and functions between the three spheres of government and between the executive, legislative and judicial branches (trias politica);

• Principles of co-operative government as overarching framework for intergovernmental relations (sec.41);

• A system of financial intergovernmental relations (sec. 213-230);^iv

• State institutions supporting constitutional democracy (sec. 181 – 194); and

• A constitutional court as final arbiter in constitutional disputes between spheres of government (sec.166-167).

Important principles that provide a constitutional basis for good governance are also included in the Constitution. Accountability, responsiveness and openness are included in the foundational values of the Constitution (sec. 1). In the context of the financial constitution it is determined that budgets and budgetary processes must promote transparency, accountability and effective financial management (sec. 215).

The importance of having strong independent institutions that must support constitutional democracy cannot be underestimated. While it is important to have a well-designed justiciable bill of rights as a cornerstone of a democratic system, it is equally important to include in the constitutional architecture independent institutions that function as pillars of the system. Important institutions such as the public protector, independent electoral commission, human rights commission and the auditor-general are included in chapter 9 of the Constitution. Common features of these institutions are that it is constitutionally determined that they must be independent and subject only to the Constitution and the law (sec. 181). The recent reports produced by the Public Protector about issues such as the huge overspending at the private residence of President Zuma, allegations of maladministration and corruption in various national departments and some provinces, illustrate the importance of having independent institutions as part of the system of the checks and balances in supporting constitutional democracy.^v

The Constitutional Court has since its inception in 1994 played an important role in strengthening the constitutional democracy by various key judgements such as the certification of the Constitution, certification of the Western Cape Constitution,^vi constitutional disputes between spheres of government^vii and on issues relating to various individual human rights contained in the bill of rights.^viii The independence of the Constitutional Court and of the other courts in the country must be protected and ensured at all times.

The development and strengthening of constitutional democracy in South Africa is work in progress. In 20 years much have been achieved in giving effect to the ideals in the preamble, the values, rights and principles enshrined in the Constitution. There is, however, much work to be done. Some of the critical issues that warrant serious attention are:

• Lack of accountability in all spheres of government;

• Financial mismanagement and corruption;

• The need to strengthen respect for the rule of law and supremacy of the constitution;

• Promoting an open democratic society;

• Strengthening professionalism and accountability in the public service; and

• Improving the quality of life of all citizens.

President Nelson Mandela, the first president of a democratic South Africa, focused a lot on nation building and reconciliation and establishment of the new constitutional democracy. That same quality of leadership is much needed in South Africa after twenty years on this road to ensure that constitutional democracy is growing in all spheres of government and civil society.

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