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The Path to Constitutional Democracy in South Africa: An Update

Published online by Cambridge University Press:  28 July 2009

Gretchen Carpenter  and
Margaret Bewkes
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Extract

Before President F. W. de Klerk's epoch-making address on 2 February, 1990, anyone who predicted that within less than two years virtually all the major political parties and groupings in South Africa would be sitting around a conference table negotiating a new constitution, would have been dismissed as naive at best. Even more amazing is the substantial degree of consensus which has been achieved in what is a relatively short time, given the long history of conflict which preceded the dawning of the “new” South Africa.

The focus of the negotiations is the Convention for a Democratic South Africa (commonly referred to by the acronym Codesa). A wide spectrum of political opinion is represented here (a total of 19 different organizations at the last count), although organizations and parties on both the extreme right, and the extreme left, have refused to participate. While the government, the National Party and the African National Congress (ANC) may be seen as the main players, the role played by even the most minor participants cannot be discounted, because of the emphasis that is placed on consensus by most of the parties involved.

Type
Articles
Information
Journal of African Law , Volume 36 , Issue 2 , Autumn 1992 , pp. 168 - 174
Copyright
Copyright © School of Oriental and African Studies 1992

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References

1 Such as the Conservative Party (CP), the Herstigte Nasionale Party (“Reconstituted National Party”) (HNP) and the numerous right-wing splinter organizations that have sprung up during the past few years.

2 Such as the Pan-Africanist Congress (PAC) and the Azanian People's Organisation (AZAPO).

3 The government and the National Party have separate delegations to Codesa, even though their interests are identical.

4 The four black territories that opted for nominal constitutional independence from South Africa during the late 1970s and early 1980s, namely Transkei, Bophuthatswana, Venda and Ciskei.

5 Dr Mangosotho Buthelezi's KwaZulu being the best-known of these.

6 The role played by the so-called 1982 Principles in the Namibian constitution-making process is significant here: see Wyk, Van, “The making of the Namibian Constitution: lessons for Africa” (1991) Comparative and International Law Journal of Southern Africa, 341;Google ScholarWiechers, “Namibia: the 1982 constitutional principles and their legal significance” (1989/1990) South African Yearbook of International Law, 1.Google Scholar

7 See the Interim Report of the South African Law Commission on Group and Human Rights, 1991, 669;Google Scholar also Wiechers “A constitutional court for South Africa” in Vuuren, Van, Wiehahn, Rhoodie and Wiechers, South Africa in the Nineties, HSRC publishers, 1991, 289.Google Scholar

8 The South African judiciary has been subjected to a great deal of scrutiny in recent years; one of the aspects which has attracted attention has been the appointment of judges, an issue which has also been the focus of a Commission of Enquiry. Also see Gauntlett, “Appointing and promoting judges: which way now?” (1990) Consultus, 23;Google ScholarNienaber “United States Supreme Court appointments: implications for a future constitution in South Africa”, (1991) Consultus 19;Google Scholar and the response to Neinaber's article by Wiechers in (1991) Consultus, 29.Google Scholar

9 See Carpenter, , Introduction to South African Constitutional Law, 1987, 372–73 and 390–92 and the authority cited there.Google Scholar

10 See the Report of the Commission at 679: “The Commission's view is that it is juridically unsound to adopt the standpoint that there are statutorily definable groups with statutorily definable ‘rights’ in this country, particularly if by those groups are meant entities which are to be given relevance for the purposes of human rights protection.”

11 See the Report of the Law Commission at 282–303 and at 668; also Heerden, Van “Provision for affirmative action in a bill of rights” (1990) Tydskrif vir Hedendaagse Romeins-Hollandse Reg (Journal of Contemporary Roman-Dutch Law), 372.Google Scholar

12 See the Law Commission's Report at 118–142 and at 495–580 for a detailed discussion.

13 The legal implications of possible reincorporation of the TBVC states into South Africa have been discussed by a number of commentators; see e.g. Carpenter, “Reincorporation of Transkei into South Africa—the constitutional implications” (1990) SA Public Law, 250.Google Scholar