South Africa’s Constitution is the result of remarkably detailed and inclusive negotiations that were carried out with an acute awareness of the injustices of the country’s non-democratic past. It is the highest law of the land and no other law or government action can supersede it.
An interim constitution was first drafted as the country made its transition from apartheid to democracy. Then, in after the April 1994 elections, a new constitution was written in consultation with the public as well as elected public representatives.
This was approved by the Constitutional Court on 4 December 1996, signed into law by President Nelson Mandela on 18 December, and took effect on 4 February 1997. It is widely regarded as the most progressive constitution in the world, with a Bill of Rights second to none.
Human rights and freedoms
Human rights are given clear prominence in the Constitution. They feature in the Preamble with its stated intention of establishing “a society based on democratic values, social justice and fundamental human rights”.
In the first chapter, human rights appear in the first of the Founding Provisions of the Republic of South Africa: “Human dignity, the achievement of equality and the advancement of human rights and freedoms.” Spelt out in detail, they occupy 35 sections of Chapter 2.
Among the rights stipulated are those of equality, freedom of expression and association, political and property rights, housing, health care, education, access to information, and access to courts.
And all are taken extremely seriously by the citizens of the country.
There must be few places in the world where constitutional rights feature as much in public and private discourse, and there has been no hesitation in testing the provisions and implications of the Bill of Rights in the Constitutional Court.
Some of the more unusually progressive rights have come under particular spotlight, such as the unqualified “Everyone has the right to life”, and the inclusion of sexual orientation as one of the grounds upon which discrimination is forbidden.
Any limitation of rights must be “reasonable and justifiable in an open and democratic society” and must take several factors into consideration. And although Chapter 2 also acknowledges the possible need to derogate certain rights under states of emergency, it lists a number of non-derogable rights.
The remaining three Founding Provisions of the Constitution reaffirm South Africa’s determination to build on a bedrock of equality, law and democracy. They are:
- Non-racialism and non-sexism.
- Supremacy of the Constitution and the rule of law.
- The provision that lays down South Africa’s democratic philosophy by stipulating “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”
Another issue given prominence is that of language. Section 6 of the Constitution states that everyone has the right to use the language and participate in the cultural life of his or her choice – though no one may do so in a manner inconsistent with any provision of the Bill of Rights.
The Constitution provides for 11 official languages: Afrikaans, English, isiNdebele, isiXhosa, isiZulu, Sepedi, Sesotho, Setswana, siSwati, Tshivenda and Xitsonga.
Not only are the 11 official languages named and their uses and right to promotion specified, but specific attention is also paid to the Khoi, Nama and San languages and to sign language.
In addition, there is mention of “all languages commonly used by communities in South Africa” and those used for religious purposes.
One does not have to know much about the constitutional negotiation process to realise that this kind of inclusive detail is the result of minute consideration of sectional interests.
Such attention to detail makes South Africa’s Constitution unusually long, although the decision to write it in accessible language has resulted in a document that is easy to read.
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 co-operative 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.
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 – these being the two houses that comprise South Africa’s Parliament.
Preceding that is the requirement that a Bill amending Section 1 of the Constitution, which sets out the state’s founding values as described above, requires a 75% majority in the National Assembly and agreement from six of the nine provinces in the National Council of Provinces.
Serious violation of the Constitution is one of the grounds on which the President may be removed from office, also on a two-thirds majority.
Justice, security, international law
The Constitution goes on to deal with the courts and administration of justice, state institutions supporting constitutional democracy, 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 (“Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament”).
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.