South Africa's transition to democracy is held up as an example but the old underlying problems endure, writes Jaap de Visser and Nico Steytler.
Zimbabwe has completed its constitutional review, culminating in last month’s elections. But questions remain about whether the process has addressed the root causes underpinning the conflict.
Further north, Kenya adopted an ambitious constitution in 2010 as part of the negotiated settlement to deal with the aftermath of the ethnic violence of early 2008. Since the March elections, implementation has gone into full swing. But the ethnic undertones remain and they render the immediate trajectory uncertain.
In 2005, the war between the government of Sudan and the South Sudanese Liberation Army ended with the Comprehensive Peace Agreement, which paved the way for the adoption of the 2005 interim constitution. In terms of that, South Sudan seceded from Sudan in 2011. Border disputes and conflict over oil revenues continue to threaten the fragile peace, though.
A number of other countries on the continent, including Egypt and Tunisia, are drafting new constitutions and a greater number are reviewing existing constitutions.
What is the relevance of the South African transition for them?
Twenty years ago, the ANC and the National Party were negotiating a constitutional compact that would herald a new political dispensation for South Africa. The resultant constitution, which sealed key compromises in legal text and which was adopted by the apartheid tricameral Parliament in December 1993, was an interim constitution because the ANC insisted that the “final” constitution must be drafted by the elected representatives of the people after a free and fair election.
That occurred after the April 1994 elections when the Constitutional Assembly, comprising the newly elected National Assembly and the Senate, passed the final constitution in 1996.
But the interim constitution established the basic values of the new democratic state, the structure of the state, and its institutions. As such, the interim constitution signified the most important turning point in the country’s history – it entrenched the values of democracy, nonracialism, inclusive governance, the protection of human rights and constitutionalism. It also shaped the future, “final”, constitution by the inclusion of the constitutional principles, which bound the Constitutional Assembly.
Although South Africans may think that they were unique on the continent in establishing a new state based on democracy, human rights and constitutionalism, it was but part of a larger wave of democratisation and constitutionalism that swept through Africa after the fall of the Berlin Wall when international support for authoritarian and minority regimes evaporated.
This so-called third wave of constitution-making saw existing constitutions being reformed or new ones adopted. The defining characteristics of these reforms revolved around the elements of constitutionalism – democracy, limited government, the supremacy of the constitution and the rule of law. The object was the dispersal of power away from executive governance and politicians and the entrenchment of individual and collective rights. The separation of powers was institutionalised, reinforcing, in particular, the independence of the judiciary.
Although constitution-building in the rest of Africa has, on the whole, not resulted in democracy, development and constitutionalism, South Africa’s constitutional order is now nearly in its third decade. We must celebrate the women and men who engineered the “miracle” of bridging seemingly intractable divides.
At the same time we must assess what has happened to the legacy of the turnkey instrument, the interim constitution. Four important questions must be addressed that go to the heart of our current political malaise.
First, the primary objective of the interim constitution was the ending of racial domination by the white minority and establishing majority rule and national integration.
Did the political settlement help us overcome or to entrench racial cleavage? Do we need to gather at Soccer City, as we did recently for a double- header of internationals – Bafana Bafana projected as representing blacks and the Springboks whites? Was the national compact of 20 years ago celebrated when the chief architects of the negotiated revolution, former presidents Thabo Mbeki and FW de Klerk, were shaking the hands of the players? Or was it a sad reminder that the divisions of the past are still very much entrenched and that we still need symbolic gestures to reaffirm our nationhood?
Second, the interim constitution ensured political control by the majority but said very little about the economy. Did that constitution provide an adequate basis for the socioeconomic transformation of the South Africa society?
The hard question remains: What has the political settlement meant for the majority of the people whose economic wellbeing has not significantly changed? The daily protests in our cities and towns look very similar to those of 20 years ago.
Third, the structure of the state (multilevel government) was aimed at the accommodation of political minorities and facilitating development. Have we met those objectives and are they still relevant considerations? The debate about provinces percolates endlessly in ANC quarters. Has this compromise served its immediate objectives and is the initial compact being unravelled?
Fourth, the constitution is embedded in judicial review, a key element of constitutionalism. Have we judicialised politics at the expense of constructive political dialogue? Has it fostered polarisation? Have we lost our ability to solve difference through negotiations – the hallmark of the politics of 1993?
The legacy of the first negotiated constitution is not only of relevance for us today as we are confronted daily with the enduring legacy of causes of the conflict that the interim constitution sought to address.
It also has relevance for the rest of the continent. What lessons can we provide?
Yes, we can show how negotiations towards a constitutional dispensation can deal with the immediacy of conflict and settle who may exercise legitimate power. But it is unclear whether we can provide any lessons on how to secure an enduring peace by consistently addressing the root cause that gave rise to the conflict.
Professor Nico Steytler holds the national research chair in multilevel government, law and policy, and Professor Jaap de Visser is the director of the Community Law Centre, both at the University of the Western Cape.
The University of the Western Cape’s Community Law Centre will host an international conference on constitution building in Africa on September 6.
More than 40 presenters from all over the continent will discuss themes such as limiting the state, designing state institutions, democratic and inclusive processes of constitution making and implementing a constitution.
As part of the proceedings, a panel of eminent experts will reflect on the relevance of the South African transition for constitution building in Africa. For more information, visit communitylawcentre.org.za/constitution-making-in-africa-conference.