SERJEANT AT THE BAR
The Constitutional Court is taken to task for assuming an old-style, chauvinistic attitude to international law
South African courts have a long history of hostility towards international human rights law. During the apartheid era this was unsurprising, particularly because it was impossible to reconcile our domestic legal order with international standards in this field. Executive-minded judges chose the discriminatory parochialism of South Africa’s legal system over the rights and freedoms enshrined in international treaties and conventions.
The establishment of a constitutional order in which fundamental rights are entrenched represents a radical break from this tradition. South Africa’s reincorporation into the international community should be accompanied by an incorporation of international standards into our domestic legal system.
Until now the track record of the Constitutional Court in this regard has been impressive. In virtually every case it has referred with approval to international human rights law. It is in this context that the court’s most recent judgment, in which it ruled on a dispute involving the families of prominent anti-apartheid activists and the amnesty provisions of the Truth and Reconciliation Commission, is most disappointing.
The families contended that section 20(7) of the Truth and Reconciliation Act, which prevents a person to whom amnesty has been granted from being held criminally or civilly liable for their crimes, is unconstitutional. One of their central contentions was that an amnesty of the nature contemplated by the drafters of the Act was in violation of international law.
There can be no dispute that a considerable body of international law exists on this matter. What is more contentious, however, is whether there exists a rule in international law that persons who commit gross violations of human rights must in all circumstances by held liable (either civilly, criminally, or both) for their acts.
Instead of considering this complex and important body of law, the court simply asserted: “The issue which falls to be determined in this court is whether section 20(7) of the Act is inconsistent with the Constitution. If it is, the inquiry as to whether or not international law prescribes a different duty is irrelevant to that determination.”
This statement is puzzling and potentially dangerous. The court is right in stating that the central issue to be determined is whether the provision which permits amnesty is consistent with the Constitution.
Section 35(1) of the Constitution reads: “… in interpreting the provisions of [the Bill of Rights] a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in the chapter.”
It is impossible to discern whether an impugned law is, or is not, consistent with the Constitution without having regard to international law. The Constitutional Court is completely wrong — as a matter of pure logic, as well as in principle — when it states that international law is irrelevant to the process of determining constitutionality.
International law may not be binding, but it seems clear the court should attempt as far as possible to interpret broad or ambiguous constitutional provisions in such a way that they conform to international law. At the very least the court should consider the substance of international law, and its applicability to the matter under consideration, rather than simply reverting to the chauvinist position that international law is only applicable in so far as it does not conflict with the Constitution.
Throughout the judgment international law is treated almost as an afterthought. After so much parochialism and outright hostility to international law by South African courts under apartheid, one would think that the new Constitutional Court would devote more time and intellectual rigour to considering the topic.
By adopting such a narrow and uncreative attitude to the status of international law, particularly concerning a matter which will be scrutinised by other countries and courts who find themselves in similar circumstances, the court has eroded the moral and legal force of international law both domestically and abroad.