Constitutional law expert Dennis Davis takes a look at the pros and cons — and concludes that the new Constitution does us proud
AT first blush, the Constitution of 1996 looks decidedly similar in structure and content to the interim Constitution which was cobbled together under the pressure of the Kempton Park negotiations.
The significance of this similarity indicates that the structural influence of the 1993 document was far more powerful than all the overseas study trips, two million public submissions and the contribution of the self- styled Canadian plain-language expert.
Undoubtedly the most significant and creative difference relates to provincial powers. The Senate, for so long in our history the retirement village for discarded politicians, has been pensioned off and replaced by the National Council of Provinces. Borrowing from the model of the German upper house, the Bundesrat, the council will have 90 members, consisting of 10-person delegations from each province. The provincial premier will presumably lead the delegation, thus ensuring a clear link with provincial interests.
Each provincial delegation will have one vote, hence a bias in favour of the majority party in the legislature.
The critical function of the council will be to participate in legislative decisions, particularly in respect of Bills affecting the concurrent powers of the provinces. If the council rejects a Bill dealing with such powers, the matter has to be mediated between the National Assembly and the council. Failure to mediate successfully means that the Bill can only become law if it obtains a two-thirds majority in the National Assembly.
Frozen in the present, an analysis would conclude that the African National Congress majority in seven provinces will ensure a quiescent council of provinces. Perhaps. But as provinces develop their particular provincial identity, the national ANC may not always be able to rely on unquestioning support from its provincial partners.
The new Constitution tries to reduce the scope for judicial scrutiny of Bills which override provincial powers where the council has given its approval. Courts tend to abhor clauses which oust their jurisdiction and this ploy is unlikely to work quite in the manner intended. The objective, however, is understandably to increase the political power for dealing with disputes and reducing the legal function.
A scan of the powers granted to provinces shows a similar position to that which previously operated, with a marginal improvement through a list of exclusive provincial powers, which are beyond the reach of central government. Significant functions like abattoirs and provincial archives are unlikely to excite the Mangosuthu Buthelezis and secessionist experts like the Inkatha Freedom Party’s Mario Ambrosini, but, on balance, the structure of co-operative government with the council does improve the influence of the provinces in the shaping of political power.
The Bill of Rights follows the interim Constitution’s Chapter 3, save that it is probably less clear in many areas. The most dramatic change is in the Bill’s enhanced scope. It now applies not only to organs of state, but to national and juristic powers, “if and to the extent that is applicable”, taking into account the nature of the rights and of any duty imposed by the rights. This little gem will bring much joy and more money to lawyers. Ah, the clarity of plain language!
That the Bill should have applied to all law, including the common law and thus to all legal relationships, both private and public, should be clear to all but the most doctrinaire libertarian. But it goes further and applies to all private relationships, even where these are not governed by express rules of law; of course “only where applicable”.
Unexpected problems could arise. If certain forms of private behaviour are constitutionally mandated, how does the legislature change the position save by constitutional amendment? The much-needed Civil Rights Act will now have to be drafted in much more restricted fashion, given the scope of the Constitution.
ut if the Bill trusts the judiciary to interfere in private relationships, it is far more coy when it comes to the state. The rights of access to information and administrative justice must now be reduced to legislation. Restrictions on these rights are now mandated, including that the right of administrative action must promote an efficient administration — a code word for reducing the scope of this right to hold the bureaucracy accountable.
On two issues the Bill passes with flying colours. It guarantees a wide range of socio- economic rights, while taking account of the problem of limited state resources. It has balanced the rights to property with the imperative for land reform in a way that only ignorance of comparative precedent or Thatcherite indifference to the need for restitution of land rights could conclude that a sensible balance has not been struck.
In summary, the Constitution has its problems, but that is to be expected. It is, as are all Constitutions, a product of history and political negotiation.
Its content is still overly dependent on Canada, the United States and Germany, and now, with regard to the application of the Bill of Rights, Ireland. Its style is a quaint combination of the anal drafting of the apartheid years and the Canadian speak of plain language. Many clauses are ambiguous and the courts will have much to do.
But the document creates democratic space for all South Africans to ensure that their hard- fought rights will not be lost to any government. For this reason alone, the Constitutional Assembly has done us proud.