Penelope Andrews, Stephen Ellman, eds. The Post-Apartheid Constitutions: Perspectives on South Africa's Basic Law. Johannesburg and Athens: Ohio University Press, 2001. x + 606 pp. $29.95 (paper), ISBN 978-0-8214-1400-2.
Reviewed by David L. Carey Miller (School of Law, University of Aberdeen)
Published on H-SAfrica (August, 2002)
Consigning Apartheid to History
Consigning Apartheid to History
Following an introductory chapter by the editors, this book has nine chapters concerned with the 1990s South African constitution-making processes, six on certain of the new constitutional rights and, in a final section, four on institutions created by the new constitution. The book is a loosely organised collection of essays about the creation, content and institutions of the basic law of the new South Africa. A succinct, clear and engaging initial chapter by the editors draws a valuable map which shows both what the work sets out to do and how the individual chapters contribute. A criticism of design--very probably a consequence of limits set by publishing considerations--is the book's exclusive focus on the historic events of the 1990s without attention to historical context. Of course, for those who know the history of South Africa--entirely accessible in a range of up-to-date works--the book works perfectly well. Nonetheless, the approach rather engenders a "nothing before apartheid" attitude whereas, of course, the tragically misguided apartheid generation had deep roots in South Africa's British-dominated past.
Seeing the 1990s transformation as part of a much bigger picture, one may observe, perhaps tritely, that domestic solutions, primarily concerned with the future rather than the past, feature in South Africa's long and troubled colonial and post-colonial history which, of course, endured up to the 1990s reform era. The eventual solution to the late nineteenth-century conflict, which led to the Anglo-Boer War, was the 1910 Union of South Africa. One perspective on the 1910 Constitution was that it sought to provide a new starting point freed from and absolved of the burden of the past. To this extent the National Convention of 1908 and the Convention for a Democratic South Africa of 1991/2 may be seen to have something in common. Of course, the essential substance of what South Africa's early and late twentieth-century constitutional conventions were concerned with is entirely different. In the former the primary issue was the co-existence and mutual interest of the minority Afrikaans- and English-speaking groups. J. C. Smuts, principal architect of the 1910 constitution, spoke to this: "The political status of the natives is no doubt a very important matter, but vastly more important to me is the Union of South Africa". In 1991/2 the focus was on saving South Africa by a root-and-branch shift to democracy. Nelson Mandela says in his foreword that the book "tells an important part of the story" of how "an impossible dream" (p. vii) was achieved. This classic piece of cryptic accuracy tacitly acknowledges the limitation of exclusive focus on a decade of history but, at the same time, recognises the validity of the exercise given the significance of the period concerned.
The essays in the initial constitution-writing part reflect the distinct perspectives of different roles and, indeed, opposite ends of the negotiating table. The contributors list includes the respective leading-party negotiators in the ANC's Cyril Ramaphosa and the Nationalist's Roelf Meyer. The editors observe in their introductory chapter that the Ramaphosa account is "less personal than Meyer's or Wessels's" (p. 4). The subjectivity of aspects of Wessels's chapter will be commented on later in this review. It may, however, be observed here that the moral high ground gives ready access to the clear and open highway of objectivity while the taint of active involvement with a government universally identified with illegitimacy and immorality is likely to lead to introspectivity. Professor Christina Murray's chapter "Negotiating Beyond Deadlock" exemplifies the positive chemistry of rational thought applied to experience gained in the social laboratory of the reform-negotiation process. Dennis Davis, liberal activist law professor turned judge, contributes a chapter especially illuminating from a jurisprudential perspective; this contribution includes valuable comment on the potentially significant impact of public law upon the well-developed and entrenched sphere of private law. In general the chapters are free of a prevalent rhetoric marvelling at the outcome but forgetting that it came about only after great and tragic loss of life. The otherwise interesting chapter from Department of Justice officer Hassen Ebrahim is marred by this tendentious position: "South Africa's transformation captured the imagination of the world. It was a model of a peaceful alternative to a bloody revolution--a miracle of modern political history. At the heart of this transformation lies the South African Constitution" (p. 85).
The book says little about the Truth and Reconciliation Commission (TRC) process but, of course, this has been commented on extensively elsewhere. It may be noted, however, that the moral premise behind this painful purging exercise reflects a position which is the antithesis of the cosmetic one represented by the above quotation. Unfortunately, the only mention of the TRC tends to obfuscate. Human Rights Commission member Leon Wessels (Deputy Minister for Law and Order in the apartheid regime), explaining his position in the pre-reform government--under the heading of "Amnesty and the Rule of Law"--comments: "In the inner circles of the government I cautioned urgently, but diplomatically, that violations had not been committed only by the opposition, but that I also had strong suspicions about institutionalised violence. Reaction to such rumours was very hostile, to say the least. It appeared that some in the establishment simply turned a deaf ear. They heard the protestations out politely, but they would not listen" (p. 44). The writer goes on to note that "many of us gave a sigh of relief" when the amnesty principle was adopted, observing that "[t]he relief we felt was for the fact that we could have the full truth out in the open without vengeance" (p. 44). But, why speak of vengeance? While one would not question the honesty of these comments, the stated basis for relief is simply untenable. The relief was surely to do with the early concession that there would be a general amnesty from prosecution. To ascribe as the actual basis for relief the perception of the whole truth emerging in an atmosphere unsullied by motives of revenge is simply disingenuous. It is relevant to note that in a compelling recent study of "states of denial" (subtitled "knowing about atrocities and suffering") the author classifies Wessels's TRC explanation of his position as a "not having an inquiring mind" form of denial, preferable to the more prevalent denial of responsibility or denial of knowledge forms: "[his] admission of bad faith--whether this came from remorse or further posturing--makes all the difference. His muted understatement--even irony, if this is possible--conveys the essence of not-knowing: 'the Nationalist Party did not have an enquiring mind about these matters'".
A primary value of the first part of the book is as an account and record of the actual experience of participants in the reform negotiations, including their perceptions of the process and their role in it. Professor Heinz Klug's chapter is named to identify its author's involvement: "Participating in the Design: Constitution-making in South Africa." The recording of experience, the dominant feature of the majority of chapters in the "Process of Constitution Writing" part, means that the work is more of an original source book than a commentary. Dennis Davis's chapter, "Deconstructing and Reconstructing the Argument for a Bill of Rights within the Context of South African Nationalism," is rather more analysis and evaluation than participant commentary. But Davis writes from the perspective of longstanding activity as an academic reform lawyer, having been Head of the Centre for Applied Legal Studies at the University of the Witwatersrand in Johannesburg after and before protracted periods working at the Law Faculty of the University of Cape Town.
The last chapter in this part of the book is about the process of legal certification, by the new Constitutional Court, of the final constitution. The author, Carmel Rickart, is legal editor of the South African Sunday Times newspaper and was responsible for reporting on the Constitutional Court's certification of the 1996 constitution. This, the longest chapter in the book, is a thorough and fully authenticated account of the entire certification process and immensely valuable as a source of what actually happened in two protracted legal hearings--insights which would not be gleaned from reading the reported judgments of the Court.
Since The Post-Apartheid Constitutions is essentially a collection of essays, it is not altogether surprising that continuity is not a strength. This causes some frustration. An illustration of the problem is in the coverage of land reform. Katherine Savage, an attorney who worked as a researcher for the ANC's Constitutional Commission, gives an account of considerable insight into the property clause deliberations, the contentiousness of which is reflected in the striking difference between the interim and final clauses: the former being a standard protection formulation, the latter a comprehensive clause which provides for protection of property but spells out the mandatory land reform agenda. In the second part of the book there is no coverage of the property clause although, arguably, the land reform process spawned by the formulation of this right is one of the most important aspects of the reform programme.
While this is a general book about the 1990s reforms it is far from complete in its coverage of the extensive category of constitutionally protected rights. The following areas are treated in the second part: citizenship and the associated but more abstract aspect of promoting equality while respecting differences; women's rights; socio-economic rights; and, finally, issues concerning contempt of court. The editors, it should be noted, emphasize the limited scope of the constitutional rights part; in the first chapter they refer to the six chapters as offering "a window on the achievements and aspirations ... by no means a survey of all of the important rights issues now facing South Africa" (pp. 10-11). Readers seeking to be informed about the general constitutional rights' position could do no better than consult a comprehensive text on the South African bill of rights, already in its fourth edition. In this work, it may be noted, there are twenty-five separate chapters on the distinct rights protected in the 1996 constitution.
Of the aspects treated in the second part, the thrust of the South African constitution means that the women's rights chapter is one of the most interesting. The two socio-economic rights chapters are, almost certainly, contributions on the most important topic of the entire work from the point of view of South Africa's future. The chapter on "Women and Rights" by co-editor Professor Penny Andrews, a South African based in the United States, is a lucid critical account of the deep and endemic problem of the denigration of female rights and the new constitution's far-reaching measures to combat and rectify this blight. Delivery of meaningful socio-economic rights (the so-called "second-generation" area) is surely a sine qua non to the future of South Africa. Sandra Liebenberg's chapter is concerned with the monitoring role of the Human Rights Commission in relation to the delivery of second-generation rights by organs of state. In the author's words it "develops a normative framework to guide the Commission in identifying violations of the socio-economic rights when it evaluates the information provided in terms of section 184(3)" (p. 407).
The chapter by co-editor Professor Stephen Ellmann argues that South African courts should borrow from American jurisprudence in determining the scope of protection of socio-economic rights--"even in the context of the South African Constitution's much greater receptiveness to the idea of horizontal application of rights" (p. 468). The rights to housing, health care, food, water and social security provided for in the 1996 constitution are to be provided by the state "within its available resources" and "to achieve ... progressive realisation" (ss. 26(2) and 27(2)). Indications as to the definition of the scope of these limitations by the Constitutional Court in health care and housing appear to be broadly consistent with Professor Ellmann's recommendation of a cautious approach. Of course the definition of the critical words "within its available resources" must vary depending upon the prevailing politico-economic position. In this regard one wonders, indeed, if the epitome of first-world capitalism can be the right model for a country liberated from oppression but in which the overwhelming majority remains in a state of economic deprivation.
In the final four chapters the focus is on institutions created by the successive constitutions of 1993 and 1996. Nicholas Haysom, who served as Legal Advisor to President Mandela, writes on the "Federal Features of the Final Constitution." This contribution is valuable as a self-standing piece on a fundamental aspect of the form of government of the new South Africa. Given the obvious complexity and apparent originality of the new constitutional structure, expert guidance is very desirable. An appearance of federal structure involving the nine sub-national provincial entities, with their legislative and executive powers, is misleading because of "an approach to national and provincial powers which can best be seen in the distinctively South African formulation of 'concurrent' powers" (p. 505). The notion of "co-operative government" is taken further through a National Council of Provinces which functions as the second or upper house in the new structure. A key feature is this body's collective veto, on the basis of a majority vote of the nine provinces, over legislation by the National Assembly in areas of concurrent national and provincial legislative competence--including education, health and welfare. An immediate question, not directly answered, is whether the structure remains a "Westminster" type subject to the very significant new factor of a normative basis provided for in the full and far-reaching bill of rights--this, of course, itself being a unifying feature.
Another major chapter in the final part is Patric Mzolisi Mtshaulana's "History and Role of the Constitutional Court." The Advocate author has an interesting CV; he was an ANC Umkhonto we Sizwe freedom fighter and, subsequently, law clerk to Judge Arthur Chaskalson, President of the Constitutional Court. Advocate Mtshaulana does not shy away from plain speaking. He shows this in comments regarding Constitutional Court statements in defence of the integrity of the judiciary in the context of the criticism of a judge who ruled against President Mandela in a certain matter:
"The country can ill afford at this stage of its development to allow politicians to use the judiciary as an instrument to achieve their political objectives. The events in Zimbabwe show very clearly that complacency in this regard can lead to anarchy and the destruction of the democratic system. Those who doubt this are reminded that today the politicians will target white Afrikaner judges who were appointed during the apartheid era; next they will target white liberal judges who were appointed during the apartheid era; and thereafter they will target all white judges irrespective of when they were appointed. Finally they will target all judges. If men and women of principle fail to protect the institution today, it may be too late when they realise the need to do so." (p. 541)
At the start of his chapter the author engages with the issue of the performance of apartheid regime judges. This important piece of recent history concerns the struggle of the South African court to find a viable basis to assert a normative position in a constitutional landscape as barren as the "veld"--in fact, a clone of the British positivist model. In the lost cause of the disagreeable role of dealing with draconian legislation the apartheid era South African judiciary are vindicated because there is no institutional charge to answer--hence Raymond Wack's Natal University judicial-resignation call lecture. In this context, it may be noted that not all hindsight judgments absolve the apartheid-era judiciary on the basis of the constitutional position. A careful piece of research, not referred to in this chapter, concluded--on the basis of an investigation of trial papers, rather than official reports of judgment--that the overall performance of the Supreme Court left something to be desired in the critical context of political trials in the 1970s black consciousness era. A final point regarding this chapter: Advocate Mtshaulana notes that the 1996 Constitution "ushers in a legal order similar to one dreamt of by South Africa's foremost fighter for the Rule of Law, Prof A S Mathews in his book Law, Order and Liberty in South Africa" (p. 527). This acknowledgment of the contribution of Natal University law professor Tony Mathews is entirely appropriate.
The two concluding essays of the book look respectively at the process and progress of the reform of the administration of criminal justice and the Human Rights Commission. The former, by U.S. political science professor and criminal justice researcher Diana Gordon, is about the necessary but difficult reform of existing institutions--the police and lower courts--to achieve delivery of the ambitious aspirations of the Constitution in terms of the perception and experience of the public. The author reports significant and useful progress in a process which will be relatively long-term. The chapter concludes with an interesting observation which brings into the equation the African factor, something not as prominent as one might expect in the general thinking and approach of the new South Africa: "The Western notion of a comprehensive Bill of Rights may be less relevant here than a process of working out an operational understanding ofubuntu, the traditional 'participatory humanism' that has fostered a collective spirit in many of the country's poorest African communities" (p. 568). The last chapter by Human Rights Commissioner Professor Karthy Govender is especially valuable as an informed critical description of the work of the Commission.
In the last decade of the twentieth century South Africa addressed its complex national life in a dramatic and comprehensive process of reform. The radical changes have swept away discrimination and introduced a rights culture founded on a far-reaching Bill of Rights. To a large extent a commentary by participants, The Post-Apartheid Constitutions gives a remarkable insight into the process and its implications. The book achieves the authors' aims in illustrating the genesis of the new rights culture and identifying the problems and challenges; moreover, it should assist in the realisation of the new order. The work, however, is not comprehensive and important areas of the reform agenda are not dealt with in detail. This applies to the land reform aspect which has proved to be critical in Zimbabwe. Perhaps this selectivity mirrors a problem of first-world bias in the quest for solutions appropriate to a country in which the indigenous people of Africa have by far the largest stake. While the book does extremely well within its compass, parts need to be read in the context of relevant history; this is true even of aspects of the public law which is the work's primary focus. In law and legal system the South African reform development is proceeding on the basis of a selective continuity with the past; in private law the Roman-Dutch based "mixed system" remains prominent although, of course, its substance is subject to the norms of the constitution. But neither subject-matter nor historical selectivity detract from the impact this book achieves as, for the most part, an informed record of the contribution of participants in one of the most interesting processes of political and legal transformation in modern history.
. Quoted in W. K. Hancock, Smuts, vol. 1 (Cambridge: Cambridge University Press, 1962), p. 256.
. For a recent account see Winston P. Nagan and Lucie Atkins, "Conflict Resolution and Democratic Transformation: Confronting the Shameful Past--Prescribing a Humane Future," South African Law Journal 119 (2002), p. 174.
. Stanley Cohen, States of Denial (Cambridge: Polity Press, 2001), p. 129.
. Some of Davis's many relevant publications are listed in the bibliography of Richard L. Abel, Politics by Other Means: Law in the Struggle against Apartheid, 1980-1994 (New York: Routledge, 1995), p. 604.
. See In re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC) and Certification of the Amended Text of the Constitution of the Republic of South Africa 1996 (Second Certification Judgment) 1997 (2) SA 97 (CC).
. See D. L. Carey Miller and Anne Pope, "South African Land Reform," Journal of African Law 44 (2000), p. 167.
. Johan de Waal, Iain Currie and Gerhard Erasmus, The Bill of Rights Handbook 4th ed. (Cape Town: Juta, 2001).
. Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).
. Government of the RSA and Others v Grootboom and Others 2001 (1) SA 46 (CC).
. President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC).
. "Judges and Injustice," South African Law Journal 101 (1994), p. 266. Responded to by Professor John Dugard, "Should Judges Resign?--A Reply to Professor Wacks," South African Law Journal 101 (1994), p. 286.
. Michael Lobban, White Man's Justice (Oxford: Clarendon Press, 1996).
. See my chapter "South Africa: A World in one Country on the Long Road to Reality," in Comparative Law in the 21st Century, ed. Andrew Harding and Esin Örücü. W. G. Hart Legal Workshop Series. (The Hague: Kluwer, 2002), p. 281.
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David L. Carey Miller. Review of Andrews, Penelope; Ellman, Stephen, eds., The Post-Apartheid Constitutions: Perspectives on South Africa's Basic Law.
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