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In love with SA's Constitution

Rowan Philp

Why does a US Supreme Court justice prefer South Africa's Constitution to her own?

At a time when South Africa’s Constitution is under scrutiny at home, a justice of the United States Supreme Court has sparked a furious political and legal debate in the US by suggesting that Egypt should emulate South Africa’s Constitution rather than America’s.

In a recent interview on Egyptian TV, Justice Ruth Bader Ginsburg said Egyptians, who are selecting a team to draft a new constitution, should not consider the US’s iconic document but instead the “great piece of work” completed in South Africa in 1996.

In the US, conservatives have accused Ginsburg of “defaming America” and “dissing” their 224-year-old charter, outraged views that were repeated by Republican presidential candidates this week.

Several political pundits and columnists also mocked South Africa, describing it as a country in which the supreme law had failed to prevent spiralling corruption and inequality, massive white emigration and even “anarchy and chaos”.

But Ginsburg’s suggestion has also triggered a scholarly debate about whether South Africa’s Constitution is a suitable model for post-Arab Spring countries.

Ginsburg lauds SA’s governing charter
The 79-year-old Ginsburg, regarded as the most liberal member of the supreme court’s nine-member Bench, said South Africa’s governing charter should be studied by Egyptian drafters because it answered modern challenges and was “a deliberate attempt to have a fundamental instrument of government that embraced basic human rights [and] an independent judiciary —”

Ginsburg also said Egypt could borrow from Canada’s Constitution of 1982.

Professor Nathan Brown, an Arab constitutional expert at George Washington University in Washington DC, said Egypt could benefit most of all from South Africa’s long and inclusive drafting process before 1996, particularly given that Egypt’s process was being “so rushed”.

Egypt is operating under a controversial interim constitution in the wake of its revolution and is selecting a 100-member constitutional assembly. But the ruling Supreme Council of the Armed Forces wants a final constitution to be in place before presidential elections take place, which could be as early as June. This has sparked a bitter debate.

Tunisia is the furthest from drafting constitution
Of the three newly liberated Arab countries, Tunisia, which has a strong secular tradition, is furthest down the road to formulating a governing law and began its final drafting process on Tuesday. In Libya, a national assembly due to be elected in June is expected to appoint a committee to draft its own constitution.

Tarek Masoud, an Egyptian professor of political science at Harvard University’s Kennedy School of Government, said that, ironically, Egypt’s 1971 Constitution, “but for a few amendments, would have been a very serviceable document”. But after 77% of Egyptians voted in a referendum in March last year to amend this document, Egypt’s military leaders, in an authoritarian move, “got rid of it entirely”, he said.

A key provision, article 2, was that “the principles of Islamic law are the chief source of all legislation”. Masoud said this provision would not necessarily present an obstacle to a robust Bill of rights.

“All parties in Egypt, including the Muslim Brotherhood, would tell you they want a democratic state and would at least pay lip serve to the importance of human rights,” he said.

A new comparative study by the University of Virginia and Washington University found that, among the constitutional documents written globally since 1996, the “average similarity to the South African Constitution continues to increase, whereas the US Constitution has become increasingly atypical”.

The study examined hundreds of documents and found that, on average, countries replaced their governing law every 19 years.

Brown said the American Constitution was “skeletal” on both rights and their enforcement and that “no one has seriously sought to copy it in 100 years”.

Ginsburg’s comments harshly rebuked
But Ginsburg’s comments met with dozens of editorial rebukes in the US and provoked a spate of online South Africa-bashing last seen in the era of Thabo Mbeki’s Aids denialism. The influential conservative National Review declared South Africa “a nation in which it is a nightmare to live”.

This week, Republican presidential candidate Rick Santorum, referring to South Africa’s liberal provisions, said human rights were conferred by God rather than governments.

The US’s surprisingly brief charter of 1787 is regarded as a limited government, hands-off style document and its provision for a separation of powers has been widely emulated.

By contrast, South Africa’s fifth and current Constitution is regarded by some as “activist” and is one of the most prominent English-language charters to promote “positive” socioeconomic rights, including rights to healthcare, housing and education.

University of Cape Town professor Christina Murray, a senior fellow at the United States Institute of Peace and one of the drafters of both the South African and the Kenyan constitutions, recently visited Tunisia and Libya and held informal discussions with her legal counterparts on constitutional options.

She said Arab Spring countries were likely to settle on constitutions that reflected each nations’ unique characteristics. But she hoped Ginsburg’s remarks would draw the attention of those drafting constitutions to the value of studying both foreign provisions and the ways they had been implemented.

“I’m sure Justice Ginsburg was speaking about our Bill of Rights rather than our parliamentary system, for instance. Perhaps [she admires] how it explicitly recognises diverse groups and languages and how a single limiting clause controls that Bill of Rights,” Murray said.

Kenya’s recently promulgated Constitution, besides drawing on the Ghanaian effort, had “essentially copied” from South Africa on the structure of rights. Kenyans now enjoy a list of rights almost 50% more extensive than South Africans, she said.

South Africa’s unusual provision of rights for citizens, binding them to principles such as non-discrimination in the workplace, was one example of a specific feature that new democracies might consider, said Murray. Another was the provision for public participation and consultation in Parliament. But, she said, “in their position I would hesitate before adopting the kind of second chamber of Parliament we have in South Africa and Kenya, which is very complex”.

Murray said South Africa itself had borrowed its key rights-limitation clause from Canada’s Constitution, whereas socioeconomic rights were common provisions in South American countries.

Like Brown, Murray said that one “easily exportable” strength of the South African example was the inclusivity of its process, inviting intense public participation and foreign input.

David Law, co-author of the Washington University study, said evidence suggested that South Africa’s growing reputation as a “constitutional power” was overblown, adding that it also shared a highly influential status with its Canadian counterpart.

“Between 1995 and 2009, the South African Constitutional Court cited Canadian Supreme Court decisions on a collective total of 850 occasions. Over the same period of time, the members of the Supreme Court of Canada cited decisions of their South African counterpart only three times,” he said.

Tlali Tlali, spokesperson for the department of justice, welcomed Ginsburg’s remarks. “South Africa has lent its services based on our history to a number of other countries in the past and ours is one of the most progressive constitutions in the world a beacon for emerging democracies.”

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