The Constitutional Assembly is likely to leave some of the trickiest disputes unresolved for the Constitutional Court to tackle, predicts Marion Edmunds
Moses was lucky. He went up into the mountains, according to the Bible, and came back with two tablets of ten commandments, which gave the fundamentals in plain language. No public participation programmes, no technical experts, no bilaterals and multilaterals, no deadlocks and no compromise.
Things are very different at the Constitutional Assembly. Less than a month and half away from deadline day, party negotiators are under pressure to reach agreement on age- old political disputes which often, as is the case of the death penalty or abortion, do not brook compromise.
Compromise, in the name of consensus and “inclusivity”, is admirable for the sake of a constitution worthy of underpinning South Africa’s developing nationhood. But there are times when the search for compromise takes the Constitution to new levels of ambiguity.
While the ANC does not see this as a problem, parties like the Freedom Front do. Corne Mulder grumbled this week: “We find it annoying — it’s exactly the same kind of method that was used in Kempton Park. The wording of clauses is such that both sides feel accommodated as they can both read what the want into the clauses, but the dispute itself is not resolved.”
The Freedom Front is particularly sensitive to this because they committed themselves to the new South Africa on the basis of elegantly worded promises, entrenched in the constitution, which have meant very little. They are no nearer getting their Volkstaat now, then they were two years ago.
Already South Africa boasts two constitutions which are celebrated more because they placate all the politicians than because they structure the state properly. These are the interim Constitution, concluded in 1993, and the KwaZulu-Natal Constitution, finally tabled last week to everybody’s enormous relief.
An insider in the KwaZulu-Natal Constitution- making process said this week that the provincial Constitution did not make entire legal sense, but that it did not matter because it was more important to get a full political settlement. Most of the real political disputes were left for later decision-making by a Constitutional Commission. So, while agreement is proclaimed, the disputes persist like a skin eczema that won’t go away.
Unisa Rector Professor Marinus Wiechers, who helped to draft the interim Constitution, says that the text was no more than a “plan for the transition” and a “huge constitutionalised political compromise” which was important at the time to resolve South Africa’s quasi civil war. But like many constitutional and political commentators, he acknowledges that not all its meanings were clear, and that the constitutional principles are so wide that they can allow for a number of different interpretations.
This is where the final Constitution is meant to be different, because, unlike the interim one, it is binding on future generations, and the decisions taken in the Constitutional Assembly are intended — in theory, at least — to protect citizens from the state forever.
Yet to get everybody agreeing to everything, the constitution-makers are starting to hedge their bets. Nowhere is it more apparent than in the Bill of Rights where clauses and their limitations are starting to grow into each other.
Public Law Professor at the University of the Witwatersrand, Professor Etienne Murenik, says that the limitation clause in the Bill of Rights has become a “rubbish bin for everybody’s anxieties”.
“The moment somebody worries about the extent of a clause, such as the freedom of speech, the other parties placate them by saying that the limitation clause should cater for their concern,” Murenik says.
Susie Cowen on the Human Rights Committee is concerned that rights are being watered down through the negotiations.
“Not only has the general test for limiting rights been lowered, but the rights themselves are being defined more narrowly,” she says.
Already Justice Minister Dullah Omar has expressed concern that the Bill of Rights might inhibit his anti-crime strategy and Land Affairs Minister Derek Hanekom does not want the property right to hinder land reform.
These tensions are being frozen into the Bill of Rights, and there are further tensions beyond it in other parts of the Constitution. Does the anti-defection clause, which prevents MP’s from crossing the floor, contradict the right to freedom of political association and expression? Does the new status of provincial government increase the power of central government, thereby contradicting the constitutional principles? If the right to lock-out and the right to strike are both in the Constitution, do they neutralise each other’s impact? Is the protection of cultural groups and languages contradicted by the anti- discrimination clauses?
It’s unlikely that the politicians in the Constitutional Assembly will want to answer these questions now — there is too much at stake and too many constituencies to lose by taking too hard a line on tough issues.
So the major political disputes and internal constitutional contradictions, either frozen into the Constitution or left open-ended are likely to end up in the Constitutional Court, for the 11 judges to decide.
And this is where one of the final inter-party constitutional rows is brewing. The appointment of these judges is key to the interpretation of the Constitution, and each party wants its own mechanism of appointment, to ensure that it gets who it thinks is best on the bench of all benches.
“Each political party is going to lobby to get its candidates on to the Constitutional Court in order to get the desired interpretation of the Constitution,” says Profesor George Devenish of Public Law at Natal University, Professor George Devenish.
He says that the Constitutional Court is currently demonstrating two ways of interpreting the law, one a mechanical way which is British in nature, and the other a more continental and creative way, which he describes as more progressive.
Devenish expects that the latter type of interpretation will eventually prevail, depending on who is chosen to be a Constitutional Court judge at the next round of appointments. In the end, he says the clauses of the Constitution which compete will have to be intepreted in the light of the Constitution as a whole.
This is welcome news to the new breed of constitutional lawyers who are looking forward to exploring constitutional possibilities at the expense of their clients, and developing South Africa’s new jurisprudence.
Unfortunately, it takes rights further away from the people, and the defence of them out of many people’s reach.