Constitutional consternation

Act 200 of 1993 heralded the arrival of the Interim Constitution for the Republic of South Africa. Prepared to enable the new government to put in place a final constitution within two years, it came into effect on the appointment of a government of national unity in 1994.

The interim constitution was created after the politicians wrangled their way through the sections of the draft while taking representations from the public and interested bodies.

The draft document was then patched together by a team of constitutional lawyers who had to embody sound legal principles in the draft, notwithstanding that the politicians, in reaching a settlement, had ignored the legal principles involved. It was a formidable task, but with help from the constitutions of countries such as the US, Canada, India, Germany and Namibia, a document was finally produced which provided the springboard for the new South Africa.

The interim constitution, which is now in force, creates a position where, for the first time in South Africa, the constitution is the final authority between the state and its subjects.

In view of its importance section 4, “Supremacy of the constitution” is quoted in full. It says:

This constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this constitution, be of no force and effect to the extent of the inconsistency.

This constitution shall bind all legislative, executive and judicial organs of state at all levels of government.

The interim constitution also created a bill of rights in which the fundamental rights of all the state's citizens are protected. It provides for the creation of a constitutional court, consisting of a president and 10 other judges, which has jurisdiction throughout the Republic as the court of final instance over all matters relating to the constitution. And, in schedule 4, it provides 34 constitutional principles upon which the final constitution is to be based.

The constitutional court has begun its duties and has already ruled the death penalty unconstitutional in the light of section 9, which provides that every person has the right to life.

On 8 May, 1996 the Constitutional Assembly adopted a constitution intended to be the final constitution, with a majority of 86 per cent, though only a two-thirds majority was required. Two days later the Constitutional Assembly transmitted the proposed constitution to the Constitutional Court and requested that court to certify it in terms of section 71(2) of the interim constitution.

In view of the importance of the matter and in the national interest, the president of the court ruled that it would receive written and oral representations before coming to its decision on the final constitution.

On 6 September, having considered the draft and the rep resentations of the various persons and organisations, the court found that the judges were “unable to and do not certify that all of the provisions of the Constitution of the Republic of South Africa, 1996, comply with the constitutional principles contained in schedule 4 to the Constitution of the Republic of South Africa Act 200 of 1993”.

The court found that the constitutional principles as contained in schedule 4 are not upheld because:

The right of employers to engage in collective bargain ing is not recognised.

Ordinary statutes are shielded from constitutional review.

Fundamental rights, freedoms and civil liberties protected in the draft legislation are not “entrenched”.

The independence and impartiality of the Public Protector, the Auditor-General and the Public Service Commission are not adequately provided for.

The legislation fails to specify the powers of the Public Service Commission, making it impossible for the court to certify that legislative autonomy has been recognised.

There is a failure to provide a framework for the struc tures of local government.

As a result of this non-compliance with schedule 4 the Constitutional Assembly has three months to rework the constitution. But the court stated the Constitutional Assembly “drafted a constitutional text that complies with the majority of the requirements of the constitutional principles”.

It also emphasised that the court has a judicial mandate and that it had no right to express itself with regard to the political choices of the Constitutional Assembly, except in dealing with compliance or not of the constitutional principles. It is now up to the Constitutional Assembly to prepare a further draft for the scrutiny of the Constitutional Court.

Hopefully, when drawn and certified the final draft will give South Africa a constitution that will stand the test of time and be looked upon with pride by fair-minded persons everywhere.