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Thursday, March 20, 1997
3:00 p.m. Presentation of Student NotesStudents who have prepared notes on topics relating to the South African Constitution and South African law will present notes for critique by selected South African scholars present for the symposium.
Friday, March 21, 1997
9:00 a.m. Welcome by University of Michigan Law School Dean Jeffrey S. Lehman
Apartheid was grounded in an elaborate system of law constructed and maintained by institutions structured like the institutions of a democracy. How was the law used as an instrument of repression in South Africa under apartheid? How was the rule of law critical to the maintenance of apartheid? In what ways were institutions that outwardly resembled democratic institutions, such as an elected parliament and an elaborate judicial system, so important to the apartheid system? How did parliamentary sovereignty facilitate the development and maintenance of apartheid? What role did the judicial system play in support of the apartheid regime?
Presentation South Africa's transition from apartheid to democracy involved a series of two constitutions produced under dramatically different processes. The interim Constitution resulted from negotiations between the National Party-led government and opposition groups led by the African National Congress, but a democratically elected assembly wrote the permanent Constitution within guidelines the interim constitutional process established. Even the interim Constitution did not develop in a vacuum, however. Prior to the multi-party negotiations, the African National Congress had worked through international organizations to secure international recognition of certain constitutional principles to guide the drafting of any new South African Constitution. What were the principal features of each of these processes? What major issues arose in the development of the Constitution? End of parliamentary sovereignty? Proportional representation? Bill of rights? Division of power between the regions and the central government? Role of the courts? Were alternate formulations possible?
Questions for the Roundtable Discussion
How did these various domestic and
international forces influence the constitution-making process? What role did
both domestic political compromise and international legal norms play in
determining these formulations? Did these forces affect the interim and permanent
Constitutions differently? To what extent did various sides in the negotiation
have drafts of the Constitution on paper even prior to the start of multi-party
negotiations? What major changes in each side's position evolved over the course
of the negotiations? What prompted these changes? To what extent were compromises
reached due to breakthroughs in the development of ideological or philosophical
consensus and to what extent did were they born of the pressure of the political
necessity to reach agreement? Were these processes unique? How did they differ
from those processes that have shaped other constitutions? Did the different
processes in the development of the two Constitutions prompt differences in the
text? What other factors led to changes between the two Constitutions?
Presentation
The permanent South African Constitution could not go into effect
until the Constitutional Court certified it as being written according to
principles established in the interim Constitution. In fact, the Court required
that sections of the permanent Constitution be rewritten because they violated
certain of these principles. This certification was an act of unprecedented
consequence for a South African court, which under parliamentary sovereignty had
been institutionally weak relative to the legislative and executive branches. The
magnitude of court certification appears even greater when considered in light of
how unique a judicial process it was even in a global context. Constitutional
certification represented only the beginning of the struggle to interpret and
define the meaning of the South African constitutional text, however. With so
many of those persons who helped to develop the Constitution still active in
governing South Africa or commenting on the constitution, each parliamentary
debate, executive action, court opinion, and even academic paper seems to carry
special weight both for the current and for later generations attempting to
discern the Constitution's meaning.
Questions for the Roundtable Discussion
How important was the Constitutional
Court's role in the constitutional certification process in establishing the
principle of judicial review? Did acceptance of the Court's certification help to
elevate the judiciary as an institution to a co-equal branch of government? Does
the certification raise the question that the judiciary has too much power?
Should an unelected body be able to override the decisions of a popularly elected
Constitutional Assembly because that elected body acted in violation of
principles that were agreed to by unelected political party representatives? Are
there reasons to doubt the legitimacy of the Constitutional Court's role in the
constitutional certification process? What should be legitimate sources of the
constitution-makers' intent by which to interpret the meaning of the
constitutional text? Should the meaning of the Constitution evolve to reflect the
development of new circumstances, or should the constitution-makers’ intent
govern the Constitution's meaning? To the extent that the constitution-makers’
intent is important in interpreting the text, should the sources be limited to
the official record of the Constitutional Assembly or should current statements
and action by participants in that process shed light on the meaning of the
constitution?
Presentation
The stability of the new constitutional order rested in large
measure upon agreement among the parties that there would be a certain allocation
of power among various constituencies and organized parties. Moreover, the
parties largely knew that the particular electoral system that they created would
lead to a certain electoral result. Thus, the parties understood well that the
implementation of proportional representation systems in the parliament by the
interim and permanent Constitutions (and of a limited form of proportional
representation in the executive branch under the interim constitution) would
enable the white minority parties that once controlled the government to remain
in the elected legislative branch and allow black minority parties to be
represented as well. Many commentators have argued in fact that the possibility
of any different result would have prevented the implementation of a new
constitution. Such a carefully negotiated constitutional scheme always is at risk
of being undermined by the inherent unpredictability of elections. Therefore, the
pragmatic need for a particular outcome to maintain the political compromise
rests in tension with the Constitution’s and with international law’s
requirements that elections be free and fair. Rather than attempt to put into
place an interim government to oversee the first democratic elections, the
parties that negotiated the interim Constitution decided to implement this
election under the auspices of an independent electoral commission that would
operate under the auspices of the National Party government then in power. Though
political parties and observers reported considerable irregularities occurred in
some areas, ultimately the Independent Electoral Commission and almost all
international observers declared the elections free and fair.
Questions for the Roundtable Discussion
Was a system of proportional
representation a political compromise necessary to guarantee a peaceful
transition to democracy? Does it also reflect a coherent set of values at the
core of a particularly South African vision of democracy? Why did these
constitution-makers favor a parliamentary system of proportional representation
over the American system of electoral districting and majority rule? To what
extent was the decision to create an independent electoral commission operating
under the auspices of the old regime rather than to run the elections under an
interim government a question of practical difficulties in running an election
and to what extent was it a question of risk allocation by the parties in case
the elections were judged unfair? What are the requirements for free and fair
elections? Despite controversies over balloting in the first election, was South
Africa's first election in fact free and fair? How well did the model of an
independent election commission work? What limitations does an independent
electoral commission have in providing for elections that are both free and fair?
How effective was the independent electoral commission in South Africa in this
regard? What changes must be made before the next round of elections to make them
more free and more fair? What should other nations contemplating first-time
elections do?
Presentation
Closely tied to the question of dividing power among various
political parties was the problem of how to divide power between the central
government and the provinces. As the price for participation in the negotiations,
both certain white minority parties wanting a Volkstaat and partisans of Chief
Buthelezi’s Inkatha Freedom Party in KwaZulu demanded greater regional autonomy
than their African National Congress counterparts proposed. The resulting
agreement delineating the division of power remained an important force
throughout the constitution-making process. After the Constitutional Assembly’s
approval of a permanent constitution, the Constitutional Court struck down some
constitutional provisions because they violated those negotiated principles
governing the relationship between the central and provincial governments.
Questions for the Roundtable Discussion
Why did this agreement continue to exert
such control throughout the constitution-making process? Is the balance that
finally has been struck sufficient to maintain the course of the democratic
transition? Are their lessons for other nations that wrestle with similar
concerns? Is the battle between province and central government only a debate
about the best place to make certain policy decisions? Or is it also a proxy for
ethnic and racial conflicts? South Africa's constitution-makers looked to other
nations to develop these power-dividing arrangements, including India, Canada and
Germany. What constitutions were most influential? Why did these
constitution-makers reject the American federalism model?
A play exploring the meaning and challenges of freedom. The story recounts the struggles of two American slaves in the 1830’s who run away from Southern plantations to find dignity and a future in Detroit, Michigan. This play by a University of Michigan faculty member already enjoyed a highly successful run in Ann Arbor, and it returns for this special engagement for one show only.
Saturday, March 22, 1997
9:00 a.m. Roundtable Discussion: Bill of Rights: At the Center of the Revolution
Panel Presentation
The Bill of Rights is one of the most revolutionary aspects of
the South African Constitution. For the first time, parliamentary sovereignty is
not the organizing principle of government. Instead, courts will judge all
executive and legislative acts against the guarantees provided by the
Constitution's Bill of Rights. Also remarkable is the breadth of the Bill of
Rights: its grant of civil, political, social, and economic rights is among the
most comprehensive in the world. However, the gap between these broad aspirations
and the daily experience of many South Africans will test South Africa's ability
to guarantee these rights in the near future. This session will focus on the
development of the Bill of Rights and on the difficulties South Africa faces in
enforcing these rights. In particular, this session will focus on the problems
the South African courts face in enforcing the civil and political rights
guaranteed by the Constitution (a later session will explore the unique nature of
enforcing positive economic and social rights). For example, South Africa has not
yet passed an Administrative Procedures Act that would provide certain processes
for the adjudication of rights implicated by certain executive actions, thereby
placing this burden solely upon the courts. Some have argued that such reliance
threatens the Bill of Rights. Chief among these concerns is the retention for the
most part of the pre-Constitution judiciary, whose interpretation of the Bill of
Rights may be so restrictive that it may largely eviscerate the
constitution-makers' intentions. In contrast, a system of administrative law, in
addition to providing case load relief to the courts, might provide protections
of rights more in line with the constitution-makers’ intent. This session also
will lay the groundwork for later roundtable discussions examining (1) the
conflict between Constitutional guarantees of gender equality and Constitutional
recognition of customary law, (2) the unique challenges of enforcing positive
economic and social rights, and (3) the constitutional responsibility of various
branches for enforcing the Constitution through consideration of the rights of
detained persons and the challenges of transforming the internal security forces.
Questions for the Roundtable Discussion
The South African government may be in a
race against popular patience in securing the rights guaranteed in the Bill of
Rights. Did the constitution-makers' dreams outreach the nation's collective
grasp? Should a constitution include aspirations for rights that its makers know
may not be attained in substantial part for many years? Or is the initial
constitution-making ÒmomentÓ so unique that the document should reflect
aspirations as much as foreseeable reality? Are violations by the state or by
private citizens of any rights guaranteed in the Constitution justiciable? Could
the availability of judicial remedies for such a broad range of cases overwhelm
the judiciary’s capacity to hear the cases presented? Can the courts effectively
protect the rights enunciated in the Constitution? Or will this burden fall
largely to the other branches of government? Would the development of
administrative law procedures provide an important forum for the vindication of
constitutional rights and relieve the courts of a potentially overwhelming case
load? What effect will the derogability of certain rights have on the litigation
of those rights?
Presentation
The Constitution provides for full gender equality in South Africa.
Yet the Constitution's recognition of customary law often creates conflicts with
the principle of gender equality because customary law generally assigns women to
substantially subordinate positions. For example, women under some customary
systems are not allowed to own property or to contract without the permission of
their husbands or even under any circumstances. Some customary law goes even
further and does not even recognize the legal status of women as citizens. In
addition to the important substantive questions this conflict poses, it provides
an example of how the South African courts and other branches of government must
resolve conflicts between separately conceived constitutional values. The
presentation will examine how women and how advocates for the recognition of
indigenous law secured in the Constitution the place of the rights for which they
advocated and how the Constitution expresses these rights.
Questions for the Roundtable Discussion
Where have conflicts between these values
arisen so far, and where are they likely to arise? How will these conflicts be
resolved? Is it possible to retain both a respect for customary law and to
guarantee equality for women? How should a court decide whether to follow
customary law or to apply the principle of gender equality to override customary
law in a particular case? Are the courts likely to be the first forum in which
these conflicts arise? Or will the parliament act to resolve some of these
conflicts before they reach the courts? To the extent that the recognition of
customary law was the result of a political compromise between majority blocs in
the constitution-making process and insular minority groups or political
interests, what effect might court decisions or parliamentary actions that
override gender-related aspects of customary law have on the relations between
the central government and the provinces? If recognition of customary law was so
important to realization of a united South Africa, could court decisions or
parliamentary actions in favor of gender equality be so threatening to some
groups that South Africa's political integrity would be weakened? Even if the
parliament should consider such effects in its acts, should the courts consider
this danger in their decisions?
Presentation
The Constitution’s guarantee of positive economic and social rights
poses particular challenges to South Africa and especially to its courts. In
addition to dramatically increasing the number of justiciable issues that the
courts might face relative to constitutions that guarantee only negative
political and civil rights against certain government action, the grant of
positive constitutional rights poses other challenges as well. Among the most
difficult is the question of what remedies the courts should provide in cases
involving rights such as the right to work or the right to housing. In addressing
these issues, the courts also come face-to-face with the question of the reach of
their power and perceptions of their own legitimacy as an institution. Should a
court explicate a right in a way arguably within the constitutional intent but
that the government does not have the resources to provide? If a court does, has
it undermined its legitimacy and authority by creating a right that cannot be
enforced? One view is that the institutional capacity and strengths of the
courts, while geared well toward primary enforcement of negative civil and
political rights, cautions a limitation of the courts’ role in enforcing economic
and social rights to correcting legislative and executive actions. The
Constitution itself does not make such a distinction explicit. However, to the
extent that this institutional capacity argument has merit, a substantial burden
is placed upon the executive and legislative branches to affirmatively interpret
the meaning of the Constitution.
Questions for the Roundtable Discussion
What test, standard, and methods of
interpretation should the South African courts use in evaluating cases involving
economic rights? Should these tests differ from the tests used to evaluate
violations of negative civil and political rights? Are all claims of infringement
of economic and social rights justiciable? If not, where should courts draw the
line of justiciability? Are rights that cannot be adjudicated empty promises? Can
courts pronounce economic and social rights and mandate remedies when these
rights are infringed that are beyond the capacity of the government (or private
individuals) to carry out? If courts or the legislative or executive branches do
not now recognize these rights in the broadest sense understood by the
constitution-makers, does the presumption that the current government best
understands the constitutional intent because its members largely wrote the
Constitution forever limit the reach and breadth of these rights? Can, will, and
should the courts assert a role for themselves as the primary interpreters of the
Constitution in the enforcement of positive economic and social rights? Should
the courts aggressively enforce positive economic and social rights, or should
they limit themselves to correction of legislative and executive action? If the
courts do limit themselves to such corrective action, does this deference
indicate an affirmative duty on the part of the legislative and executive
branches to enforce the positive rights through direct action?
Presentation
Securing the negative rights guaranteed in the South African Bill of
Rights, i.e., those protections from government power, may prove just as vexing
as the enforcement of positive economic and social rights, particularly where
these rights implicate substantial institutional reform. In no area will this
task be more difficult than in the protection of the rights of detainees and in
the transformation of the former internal security forces. This task will place
South African courts in a position that they never before have undertaken to any
great degree: oversight of the executive and legislative branches. Arguably, the
Constitution mandates that South Africa’s elaborate internal security apparatus
immediately apply rules antithetical to those under which it has operated for
decades. Yet changes in many of the abusive practices within the security system
likely will be slow in coming. One argument holds that the courts should take the
primary role in establishing rules of police conduct, defining the constitutional
limits of police power, and fashioning appropriate constitutional remedies for
incidents of torture and misuse of power. Other arguments note that the courts do
not have the institutional capacity to control or reform the internal security
system and that both the Constitution and pragmatic considerations demand
alternative means of overseeing the nation’s internal security apparatus and
protecting individual rights. In addition to eliciting discussion on the
substantive problem of detainee rights and institutional reform within the
security forces, the examination of these questions also will reveal much about
the court's willingness to engage in judicial review of the actions of other
branches of government, about the Court's methods of constitutional
interpretation, and about its view of its own role in the constitutional order.
Questions for the Roundtable Discussion
To what extent will the court establish for itself a role in setting forth
new rules for the state's internal security apparatus? Can the courts be an
effective agent of protecting individual rights vis-â-vis the internal
security system? If so, will the courts act proactively and set broad rules
or attempt to adjudicate on a case-by-case basis? How will the courts determine
where the Constitution assigns the role of controlling the internal state
security system and guaranteeing the rights of individuals brought within
the control of that system? Where will it determine that role lies? If the
courts cannot effectively control the security practices, what role must the
legislative and executive branches play in reformulating internal state security
practices? To what extent is this role constitutionally mandated?
In light of fears and even expectations about how apartheid in South Africa might come to an end, South Africa has had a remarkably smooth road thus far. Where does this journey take South Africa now? What implications does South Africa’s experience of constitution-making – both the drafting process and the ongoing constitutional interpretation – have for other nations embarking on their own democratic journeys?
8:00 p.m. Banquet and Speech by The Honourable Mavivi Manzini, Member of Parliament (Crowne Plaza Hotel)
