On 22 April 1996, with just two weeks to go before the deadline, the writers of the South African Constitution had reached another impasse. They’d managed to whittle down the list of 68 issues that needed to be settled, but several sticking points remained.
Amongst these were disputes about the death penalty, the property clause, and the appointment of judges and the attorney-general. Addressing both issues of governance and human rights, these would end up resolved and become some of the markers of what has been described as the “world’s best constitution.”
Ruth Bader Ginsburg, the US Supreme Court justice who died at 87 on Sept.18, lauded South Africa’s constitution publicly on more than one occasion for dealing with a country’s modern challenges.
In a 2012 interview with Egypt’s Al Hayat TV—in the wake of the Arab Spring uprising and democratic optimism there, she advised that the South African document was a better model to follow than the American one because of its more recent creation, but also because of its content. “That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recent than the US Constitution.”
Having been present in Johannesburg at the 2004 opening of the Constitutional Court, Justice Ginsburg was familiar with the constitution. This may have been in part because of her belief that countries should consider international laws.
Speaking at the University of Cape Town in 2006, justice Ginsburg shared that the US Supreme Court would find value in having wide-ranging legal references such as those from South Africa. “The US judicial system will be the poorer,” she posited, “if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.”
Around the world, constitutions have different tones and identities. Some are preservative in that they seek to maintain existing practices and to ensure that things do not get worse. Some are transformative because they set out certain aspirations that challenge to longstanding practices.
Justice Ginsburg is not the only US jurist or legal scholar to have hailed the South African constitution. American legal scholar Cass Sunstein has described it as the “world’s leading example of a transformative constitution” because of its rights-based approach.
Associate professor in the faculty of law at South Africa’s North-West University Elmien du Plessis credits the constitution for being an ambitious document, in addition to fulfilling administrative purposes. “I think our constitution is very hopeful. It sets a vision for what we as South Africa would like our society to be like. It also has justiciable rights, and it requires the state to take action; to make laws to give effect to some of the rights. I think that is special.”
While South Africa had four prior versions, these were effected to uphold the disenfranchisement of Black people and women; particularly under apartheid. The current version was promulgated in 1997, after democracy. It introduced universal adult suffrage and the same rights to resources such as healthcare, education, and property for all South Africans.
According to David Hulme, public law lecturer at the University of KwaZulu Natal School of Law, this interplay between the law and quality of life allows for symbiosis that can bring positive change.
“Ginsburg’s feminist interests, for instance, possibly have more to do with human rights than pure constitutional law, although it’s always difficult to make a complete distinction, in that constitutional law is sometimes the vehicle through which human rights are enforced.”
Shaping the future
South Africa’s constitution took two years to write and has been the highest law in the land for more than two decades. It was the first in the world to explicitly prohibit discrimination based on sexual orientation. Same sex marriage became legal in South Africa in 2006. It was legalized in the UK in 2014, with the US following suit in 2015. Having such a nascent document has meant that modern hot-button topics and rights were addressed in the original writing; with less necessity for additions and updates.
While he does admire aspects of the US Constitution, Hulme agrees with Ginsburg that South Africa’s more modern offering can be a better reference for other countries, in particular around the comprehensive list of rights in the South African constitution. But he notes she also seemed to feel that the constitution made certain fundamentals, such as the independence of the judiciary, more explicit.
“Where there are no societal conventions supporting such fundamentals it is important for them to be spelt out,” says Hulme. “The US Constitution also contains other fundamental gaps, for instance, unlike the South African constitution, the US constitution makes no specific provision for the judicial review of unconstitutional legislation or conduct. Though arguably implicit, this feature was authorized jurisprudentially in the case of Marbury v Madison in 1803. When the US constitution was drafted these ideas were in their infancy and are more developed now.”
Stu Woolman, editor-in-chief of both Constitutional Law of South Africa and the Constitutional Court Review is a graduate of Columbia Law School—where Ginsburg was the first tenured female professor. Currently professor of law at the University of the Witwatersrand in Johannesburg, Woolman notes that the South African constitution not only “looks good on paper,” but also contains “a large array of provisions that provide support for judicial opinions that might be a stretch under briefer texts such as the US constitution.”
Woolman says that the clear normative content of the text married to the institutional pragmatism of the Constitutional Court has created a powerful rule of law doctrine and a robust dignity jurisprudence. While the constitution has many merits, “the basic law cannot solve the myriad socioeconomic problems with which South Africa must contend,” says Woolman. “The constitution merely provides the scaffolding within which politics takes place. Only collective political action—no small thing—can bring about the radical, systemic reconstruction, and development required to make South Africa a truly just society.”
A normative document rather prescriptive document, the constitution paints a portrait of a South Africa that was hoped for but hasn’t fully materialized. While notable advances have been made, much of the socioeconomic limitations of colonialism and apartheid have remained.
This spans from a poorly educated populace who often don’t know the law nor how to leverage it to meet their needs, to a ruling party that has been so racked by scandals and graft that governance has not always been a focus area.
Additionally, the Constitution prescribes punishments for malfeasance but not motivation for good stewardship. Just as the purveyors of apartheid did, the ruling African Nation Congress seems to often prioritize self-aggrandizement and neglect social development.
Constitutions can serve as a guidepost of what a reconstructed future could look like. To do this, they need to both acknowledge the past, be relevant in the present, and shape decades to come.
This timeliness aspect is one that sets the South African constitution apart. It’s one that holds an important lesson for the US, says North-West’s du Plessis.
“There is always the debate if a constitution should be interpreted to mean what the founding members intended, or if one gives meaning to it in the present day. The US constitution is very old, and it was written in a time where women and Black people had little to no rights. And I think the US can ask how that influences the way society is structured, and what kind of society it wants.”
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