The role of the Constitution in shaping societies: A comparison between Germany and South Africa
The South African Constitution - threats, challenges and opportunities
Before talking about the threats and challenges facing our Constitution, as well as the opportunities that it provides, it would be useful to briefly look at the history of our Constitution and specifically at the profound influence that the German constitution had on our own constitutional development. That influence has enabled constitutional writings in SA, as well as some constitutional cases, especially on the application of our Bill of Rights, to draw on continental and specifically German precedents. It also means that we can learn a lot from the German experience as to what the factors are which threaten the existence of a Rechsstaat and which put the institutions of government in peril.
Not only was the influence profound, but the German model itself became pivotal to our development. As a result, there are striking similarities between our experience and that of Germany.
The first similarity is the effect that the Constitution had on changing our respective societies. After the 2nd World War and the disastrous Nazi regime, West Germany had to start from scratch in rebuilding a constitutional state. The basis for this was their Grundgesetz of 1947. This value based Constitution shaped the entire German society, as it again did in the nineties when the erstwhile East Germany became incorporated. In the same way, our Constitution, after the apartheid regime, shaped our entire society. Before 1994 we had the Westminster system which did not know what a fundamental law was. Parliament was the supreme law of the land and there were no constraints on what the elected representatives legislated. In adopting our Constitution this changed and the Constitution defined the rules. During this process we drew much knowledge from German constitutional law. Many of our young academics, specifically Afrikaans academics from the seventies, went to German Universities to further their studies with the prestigious Alexander von Humboldt stipends. Not only did they become imbued with German constitutionalism; they also published quite extensively on German constitutional law.
The second important similarity is the similarity between our Bill of Rights and the German System of Fundamental Rights. Before 1994 we did not have a justiciable Bill of Rights. Again in drawing up our Bill of Rights, much was learned from the German system. The result is that there are similarities between our Bill and the German one, especially on the restriction of fundamental rights in an open and democratic society.
The third similarity arises through the influence that the German Constitutional Court had in the construction and establishing of our own Constitutional Court. The institution of a Constitutional Court was completely foreign to the Westminster system and we gained a lot of insights from the German model.
The fourth similarity is the system of decentralized government, for although Germany is a federal state, much was learned from the German experience to shape our own quasi- federal state of provinces and local government.
So much for the similarities. We do differ in one fundamental way which becomes very important when dealing with threats to the Constitution. Unlike the German situation, there are no provisions which are completely exempt from amendment. In contrast, our Constitution makes provision for change. It provides that the foundational values can only be amended by a 75 % majority. For this reason, it is clearly in the interests of our constitutional state that no one party has a 75% or greater majority. Amendments to all other provisions of the Constitution, including the Bill of Rights, require a two thirds majority.
Having said that all our provisions can be changed, there is an interesting debate regarding the 34 principles which were agreed to by all the negotiating parties which has bearing on potential threats. These principles defined the very nature of our constitutional state and were contained in our 1993 Interim Constitution. In terms of s 74 of the Interim Constitution there was an absolute prohibition against amendment or repeal of those principles. Since the 1993 Interim Constitution was, in terms of its own provision, thoroughly replaced by the Final Constitution, the 1996 Constitution, the positivistic view is that those 34 Constitutional Principles have no life after the adoption of the final constitution. This was the stance adopted by the Constitutional Court in the Certification case. The contrasting view, which is the one adopted by the Centre, is that, although the principles are not perfunctory, they do however define the very nature of our constitutional state. They are the fundamental laws which precede and indeed form the founding blocks of our Constitution. Being definitive guidelines for the drafting of our constitutional state, they would still certainly have the same legal force if in future the Constitution is perverted in such a way that the very definition of our statehood is violated. Since the repeal of the Interim Constitution was only certified by the Constitutional Court because it was satisfied that the Constitutional Principles were all intact, it is to this extent that provisions of s74 of the Interim Constitution live on in the Final Constitution. So, for example, although the doctrine of the separation of powers is not expressly articulated in the Final Constitution, as the Constitutional Court has repeatedly held, it is definitely part of our law, deriving from the Constitutional Principles. Adopting this position, any attempt to amend the Final Constitution that is at odds with the Constitutional Principles would be inconsistent with our constitutional dispensation and accordingly liable to be struck down as such under s2 of the Final Constitution. The significance of this approach becomes particularly important when foundational values, such as the rule of law, independence of the judiciary and the separation of powers come under attack, as they currently are.
What then are the threats and challenges to our Constitution and what opportunity does the Constitution provide to maintain our value based democratic state?
The starting point is that our Constitution is a sacred document. Although highly influenced by the German experience, it is first and foremost the outcome of long and arduous negotiations between political parties representing substantial majorities in all our communities. As stated by former President Mbeki when declining to accept a third term of office as President, to do so would amount to a breach of the compact concluded with the people of South Africa. It must thus not be amended unless it is clearly demonstrated to be essential for good governance.
To date, this has largely been the position. For although 17 amendments to the Constitution have been proposed and 15 have been passed, most of these were procedural and did not pose a threat. However the same is not true of the remaining two proposed amendments which, although withdrawn, their re-emergence is inevitable. This is so since their origins lie in resolutions passed at Polokwane, which in turn were simply giving effect to principles contained in the ANC’s Strategy and Tactic document.
The first of these, and likely the most immediate, is the draft Constitutional Seventeenth Amendment Bill. The Bill has not yet been released for public comment. It has however been approved by the Executive. The Bill vests national government with powers to limit the executive authority of municipalities in respect of local government matters, ostensibly to facilitate service delivery and to achieve regional efficiencies and economies of scale at local level. However, the way that the Bill is worded, means that its scope is far broader than that. It will in effect enable the ANC to severely limit the mandate of an elected local government, especially where the ANC does not govern and the local government is refusing to implement ANC policy. This proposed amendment thus needs to be carefully monitored.
The second threat is one which threatens the independence of the judiciary. This threat first emerged in 2005 with the Fourteenth Constitutional Amendment Bill and a series of Bills aimed primarily at making the judiciary “more responsive to the aspirations of the people”. After massive civic opposition and opposition by the profession, including all living Chief Justices, they were withdrawn in July 2006. However, as the ANC once again called for the implementation of far-reaching reforms of the judiciary at its Polokwane conference last December, the re-emergence of these Bills can safely be anticipated. The reforms called for included:
- the establishment of the Constitutional Court as the single apex court - thus removing the status of the Supreme Court of Appeal as the final arbiter of all non-constitutional issues;
- the transfer to the Minister of Justice ultimate responsibility for “the administration of courts, including any allocation of resources, financial management and policy matters”; and
- increased executive control through the establishment of “a single rule-making mechanism for all courts, in terms of which rules drawn up by the Rules Board would be subject to the approval of the Minister and Parliament.
Although President Zuma has, in his acceptance speech, declared that he will uphold the Constitution and that he respects the independence of the judiciary, we should thus not be lulled into a false sense of security. The Polokwane resolutions remain and recent events affecting our legal institutions and the role of law, combined with electioneering rhetoric are indeed cause for concern. I refer in particular to the abolition of the scorpions; the firing of the director of public prosecutions; the criticism of the Chief Justice’s correct assertion of allegiance to the Constitution alone; the comments by President Zuma that our Constitutional Court judges are not gods and those of the ANC that judges in general are accountable to the people. These threats are of great concern. They are not simply aberrations. They all have their origin in the strategy and tactics document of the ANC, which was given effect to in the various resolutions passed at Polokwane. Other disturbing resolutions include resolutions regarding freedom of the press, property rights and a single public service.
The Polokwane conference resolved that the media should “contribute towards the building of a new society and be accountable for its actions”. It expressed the belief that the arts and culture should serve the purposes of its National Democratic Revolution” and that the media needed to “take on a specific responsibility in this regard.” It also called ominously for an investigation into the establishment of a Media Appeals Tribunal to “strengthen, complement and support the current self-regulatory institutions”. This resolution must be viewed against the recent legislation which was passed under the guise of restricting child pornography, but which in effect provided for pre-publication censorship and the Broadcasting Amendment Act which allows the National Assembly to dissolve the entire Board for failure to discharge its duties and then handpick an interim board without public participation or transparency.
Although draft legislation proposed last year altering our property rights and effectively removing the role of the courts was withdrawn, that legislation likewise had as its origin a resolution passed at Polokwane. It too will thus re-emerge. The resolution called on the Government to “discard the market-driven land reform and immediately review the principle of willing-seller, willing-buyer so as to accelerate equitable distribution of land.”
Having stated earlier that our Constitution should not be lightly tampered with and that, in particular, we must protect our foundational values, I hasten to add that the Constitution should nonetheless remain a living document. To the extent that it no longer serves its purpose of facilitating principled good governance, it should be amended. One such example is the electoral system. As an interim measure, and purely to accommodate minority parties, the Constitution allows for proportional representation. In essence this means that the electorate vote for a party, who in turn determine the candidates. There is thus no direct accountability of the elected candidate to any constituency. This needs to be changed.
These then are what the Centre perceives as the most immediate threats which challenge the very cornerstones of our democracy. Fortunately, our democracy is founded on the principle of the supremacy of the Constitution and the rule of law. As such the Constitution itself is the ultimate safeguard of that democracy through the mechanisms and institutions it creates. It is up to each one of us to remain constantly vigilant and to use those mechanisms and the institutions to quash any threats.
Adv N de Havilland