Comparative Constitutional LawClass 21

November 5, 2008South Africa: Origins and Structure of its

Constitutional System; the SA Constitutional Court

History of Apartheid

Nelson Mandela• Member of Thembu

(Xhosa) royal family• Became active in the

ANC. • Acquitted in famous

Treason Trial in 1961• After ANC banned,

Mandela went abroad to set up its guerilla wing, Umkhonto we Sizwe (MK)

• 1961: SA leaves Commonwealth

The road to imprisonment

• Later Mandela went underground in SA• Caught in 1963 and sentenced to 5 years

in prison for leaving country illegally• While in prison, other ANC leaders caught

in Rivonia Raid and brought to Robben Island for 1964 Rivonia Trial.

• He and other members of ANC High Command sentenced to life imprisonment for “sabotage,” then a capitol offense

Robben Island• Political prisoners put to

hard labor on chain gangs

• Mandela never mistreated, but witnessed much abuse

• By the early 1980s, foreign pressure mounting for the release the Mandela and other political prisoners

• 1982 Mandela and 4 others moved to Pollsmoor Prison.

1970s and 1980s

• Increasing international isolation for SA• UN resolutions of condemnation• Bans on sports teams• US, UK and 23 other nations enact trade

sanctions by end of 1980s• 15-20% minority of whites vote for

Progressive Party that opposes apartheid

ANC-NP secret negotiations• In 1985 Minister of justice and prisons Kobie

Coetsee was receptive to Mandela’s efforts to meet with him

• They met in 11/1985 at a hospital where Mandela was recovering

• Coetsee: “Some intuition told me I shouldn’t see Mr. Mandela behind bars.”

• Secret meetings continued for 4 years. No real progress was made.

• At this time: continuing violence, near constant states of emergency

ANC-NP secret negotiations

• 1988 Mandela moved to relatively luxurious house at Victor Verster prison

• Mandela taken out on secret car trips to expose him to realities of outside world and prepare him for release.

1980s continuing escalation of violence

• 1989 FW de Klerk becomes PM after Botha’s stroke. De Klerk former conservative NP member.

• Government talks with ANC leaders: 1989-1990

F.W. deKlerk: lifts ban on ANC, releases Mandela

• On 2 February 1990, president F.W. deKlerk reversed the ban on the ANC and other anti-apartheir organizations.

• Announced Mandela’s release from prison

• Mandela released on 11 February 1990. Event broadcast live all over the world

Challenge: how to negotiate democracy, write a Constitution

• ANC – wanted democratically elected constitutent assembly

• NP government wanted extended transition period in which constitution would be negotiated

• IFP wanted depoliticized process of expert constitution makers, which would be ratified in national plebiscite

• Eventually agreed on 2 stage process : (suggested by Mandela): all-party congress to negotiate route to constituent assembly. CA would not have a free hand in drafting final constitution – convention could lay down binding principles restraining it.

CODESA• Conference for a Democratic

South Africa• Met in Dec 1991• 19 groups represented, but

not IFP leader Buthelezi • NP wanted drawn out

negotiations• ANC wanted quick process• Conflict between de Klerk

and Mandela• Whites only referendum

followed in March 1992 on whether to continue with reforms. Answer yes by 2/3 majority.

CODESA II

• Collapsed after Boipatong massecre where 46 people killed by security forces

• ANC withdrew from negotiations, accusing government of complicity

• Militant wing of ANC was strenghened• Violence continued

Resumption of negotiations• Through bilaterial negotiations

between ANC and NP• 2 key negotiations: Cyril

Ramaphosa (ANC) and Roelf Meyer (NP)

• Joe Slovo, leader of South African Communist party proposed breakthrough "sunset clause“ in 1992: for a coalition government for the five years following a democratic election, including guarantees and concessions to all sides.

Multiparty Negotiating Forum

• Gathered first in April 1993• Negotiations almost destroyed by

assassination of Chris Hani on April 10• Interruption to negotiations in June 1993

when World Trade Center stormed by right-wing Akfrikaner group

• Interim Constitution ratified in November 1993.

Interim Constitution

• Entrenched Government of National Unity for 5 years to ensure legal continuity required by NP

• Provided for final constitution to be creaetd within 2 years from first sitting of National Assembly

• 2/3 of members of National Assembly and Senate (Constitutional Assembly) had to vote for Constitution

Interim Constitution• Much of constitution addressed fears of white minority

that there would be vengeance• Cabinet seats given to minority parties for first 5 years.

Power sharing in executive power by minority parties – president party running first, 2 deputy presidents (parties running 2 and 3 unless failed to get more than 20% of popular vote, in which case to majority party)

• Powers to provincial governments• Entrenched BOR safguarded by powerful constitutional

court• House of Assembly (400 members), Senate of 90 (2

from each province)

1994 elections: victory to ANC (in alliance with Communists/Cosatu)

• President: Nelson Mandela

Truth and Reconciliation Commission

• The TRC was set up in terms of the Promotion of National Unity and Reconciliation Act, No 34 o 1995

• Based in Cape Town• Mandate: bear witness to, record, and in some

cases grant amnesty to the perpetrators of crimes relating to human rights violations, reparation and rehabilitation

• Final Report 2003

1994-1999• Government of national

unity• 1996 Final constitution:

how is it created? Certified?

• 1999 second democratic elections: Thabo Mbeki (ANC exile for 28 years) becomes President. ANC increases majority.

• Relected to 2d term 2004

Difficult balance for SA

• Between supporting white-dominated business community and keeping ANC’s promises to core constituency of poor black majority

• Mbeki: controversial over failure to overtly criticize Robert Mugabe and stance toward AIDS (though now official government policy that HIV causes AIDS)

Resignation of Mbeki• Criticized by ANC over firing of Jacob Zuma in 2005• Barred from seeking a 3rd term of office• Ran for leadership of ANC and lost, in close race, to

Zuma• Allegations of interference in corruption trial of Zuma• ANC executive committee said it would no longer

support him and Mbeki resigned • Current temporary president Motlanthe, Zuma’s deputy• Elections scheduled for 2009

South African BOR

• Which constitutions seem to have had the biggest influence on the SA BOR?

• Horizontal effect?• Are there internal rules of interpretation?

S. 39(1)

• Must interpret constitution to “promote the values that underlie and open and democratic society based on human dignity, equality and freedom” and consider international law

• Can also consider foreign law

SA Constitutional Court

• 11 justices• Appointment of justices• Background • Diversity

SA Constitutional Court

• 11 justices• Appointment of justices• Terms: 12 years (7 in interim); 70 year

mandatory retirement age• Background • Diversity