It is treated almost as trite in South African political discourse that our constitution, officially called the Constitution of the Republic of South Africa, 1996, is the ‘best constitution in the world’. The popular American jurist, Cass R Sustein, for example, has written that he considers the South African constitution to be the best in the world. This paper by Mark S Kende makes a similar argument, going as far as to say that the United States Supreme Court can learn a thing or two from the South African Constitutional Court.
That it is the best constitution in a world is a statement that has rarely been analysed and picked apart, which is something I hope to take a stab at in this article.
What is a constitution?
Before one can determine whether South Africa’s is the best constitution in the world, it goes without saying that one must understand what constitutions and constitutionalism are all about, and what the measure of a ‘good’ constitution would thus be.
The idea of a limited — rather than unlimited — government is at the center of the ideas of a constitution and the philosophy of constitutionalism. Constitutions are, however, not the extent of constitutionalism. There are various principles — mostly related to limiting government — inherent in constitutionalism as a philosophy, but do not necessarily appear in the wording of constitutions. The word ‘constitution’ itself implies that there is a framework that constitutes and regulates the institution of government, just like a club or association’s constitution establishes that club or association and sets out its powers.
The government cannot act outside of what its constituting statute provides, because the two are inextricably linked. This necessarily implies that constitutionalism is about limiting, or at the very least, framing, the power of the State.
A constitution does this in two ways.
The first way is through its procedural or technical provisions, which set out how government is composed and what specifically its powers are. The South African Constitution, for example, establishes Parliament and the presidency, and says what Parliament and the presidency are supposed to do.
The second way is, however, the more substantive way in which the power of the State is limited: by way of a bill of rights. A bill of rights recognises the human rights of the people and entrenches protection for those rights.
These bills do not ‘create’ any rights. In the absence of a bill of rights, a court can still declare legislation or government conduct unconstitutional if that legislation or conduct is outside the scope of what the procedural and technical provisions of the constitution allows. For example, if a constitution says “Parliament may only make laws regulating trade”, then a court can strike down legislation that regulates the press. An express right to freedom of expression or freedom of the press would not be necessary, because people are supposed to have all the freedom outside of those areas government is constitutionally allowed to regulate, already. But even courts require guidance, and bills of rights are useful in entrenching certain protections to make it clearer what government can and cannot do.
The technical provisions of a constitution also bring about the so-called separation of powers.
The doctrine of the separation of powers is aimed at decentralising the location of power in government, especially the power relating to the making, implementation, and adjudication of law. The legislature, being Parliament, makes the law; the executive, being the President and Cabinet, implements the law; and the judiciary, being the courts, interprets and applies the law. The legislature is also responsible for representing the people and acting as an oversight mechanism for the executive. The executive is primarily responsible for the maintenance of peace and order. And the judiciary also adjudicates disputes between the people, and between government and the people.
Rarely is any of this found in a bill of rights, but it is central to ensuring freedom in society.
Constitutionalism, finally, is also about maintaining the Rule of Law, which means government does not act arbitrarily towards the people, but rather acts according to certain, knowable, accessible, and objective law. In a constitutional state, a citizen knows that when they are dealing with a government official, that official will not act capriciously, lazily, or according to their own discretion, but rather to strict formulas and criteria found in the law, producing fair and predictable results.
How does the South African Constitution score?
In this article I will distinguish between the Constitution, and how the Constitution has been implemented and respected. The Constitution itself cannot be blamed for things like corruption, or lacklustre adherence to court orders by government. But various provisions in the Constitution, as written, do deserve analysis.
The temporal problem
I have criticised the temporal problem of the Constitution elsewhere.
Briefly, the Constitution, and especially the Bill of Rights, is so rife with references to the recent past that it freezes South Africa in a permanent ‘post-Apartheid’ status. Whether it is 1994, 2018, or 2230, the Constitution will always empower government to redress past racial discrimination. This, read with the sections in the equality provision and the property provision, means government will always be able to intervene in private affairs in the name of ‘Transformation’, even if South African society had totally transformed.
A constitution is supposed to be timeless — a law meant for the ages. The interim Constitution was specifically a temporary constitution meant to address a temporary problem, but the current Constitution was meant to be permanent. Yet it still contains this temporal problem.
With that being said, the problematic ‘temporal’ provisions, if read from a Rule of Law — that is, rational, proportional, contextual — perspective, should not present too much of an issue. Once South Africa is transformed, a Rule of Law-conscious court must read the temporal provisions within that context and conclude that government cannot wield those powers to address a non-existent problem. Unfortunately, the judiciary in South Africa has adopted a clear political agenda, and will likely not see it this way. The Constitution cannot be blamed for a politicised judiciary, but it can be blamed for having an inherent defect that allows a politicised judiciary to wield its provisions in an abusive way.
Separation of powers
The Constitution is pretty standard in the separation of powers department, which is both good and bad at the same time.
It is good because the essence of the separation of powers still exists: the point is to ensure power is not centralised in any one place, but rather dispersed, so as to ensure freedom and good governance. It is bad, on the other hand, because it does not go far enough for the South African, and particularly the African, context.
One-party dominant states were already the norm throughout independent Africa when the Constitution was being written. In South Africa, one party had already controlled the executive, the legislature, and thus the appointment of the judiciary as well, and the provinces, for half a century. The constitutional drafters did not set out to embed protections in the Constitution against this eventuality. Proportional representation was about as far as they went, but this system does not offer any constraint on executive power, and the legislature is still allowed to rule, for the most part, with a simple majority.
The bad aspects of the British Westminster system were also adopted into our separation of powers. The President is not directly elected, but is instead chosen from the National Assembly, by the National Assembly. And the President of South Africa is usually the leader of the ruling party, giving him immense power over that party’s deployees in the National Assembly. The President, while he controls the approval of a majority of his party’s top lieutenants, controls the legislature. Not to mention the fact that the President plays a very prominent role in the appointment of judges, when this should ideally have been a function reserved for an independent judicial body.
Finally, the National Council of Provinces (NCOP), the upper house of our Parliament, was a constitutional mistake of gargantuan proportions. Presumably, this institution is supposed to represent the interests of the provinces on the national level, but as I explain below, this is not the case in practice.
In the United States, which is a diverse federation, the Senate was originally supposed to represent the interests of the sovereign states of the federation at the federal level. Representatives, who are popularly elected by constituencies, would represent the people, and senators, chosen by the legislatures of the sovereign states, would represent state governments. The Senate was thus indirectly democratic, as senators were chosen by directly-elected state legislators. (The Senate is today elected directly, like the House of Representatives.)
South Africa did not have a comparable situation in 1996, and does not have a comparable situation today.
This country is not a federation, meaning we do not have sovereign provinces with their own legal-political interests. The public interest is a top-down concept in South Africa. We do not have a federal judiciary, or provincial legislatures that can overwrite national legislation. (The cases where it is possible for them to do so are too insignificant to mention.) While South Africa is very culturally, racially, and linguistically diverse, we are not geopolitically diverse. The same interests appear across the country with minor exceptions: the same land debates are had in every province, the same service delivery protests are had in every province, and the same wage disputes are had in every province.
Had South Africa been a federation, the NCOP as we know it today may have been useful, since relatively autonomous law-making authorities with different labour laws, different land reform laws, etc. would have created provincial politics and interests that were different from one another. This is not the case, making the NCOP a pointless, federal institution in an otherwise unitary state.
To add insult to injury, the NCOP is not at all democratic. Our provincial legislatures are indirectly democratic, since we choose the party to govern that province, which chooses the provincial representatives. But then those indirectly chosen provincial representatives themselves choose who is going to represent the province in the NCOP, meaning the NCOP is indirectly democratic twice over, which is not democracy.
The NCOP thus serves no substantive constitutional function. It is a wasted expense. It does not ‘check’ the lower house — the National Assembly — and even if it did, the National Assembly can overwrite any NCOP objections by following a relatively simple process. The NCOP rubber-stamps virtually everything the National Assembly sends to them anyway.
Bill of Rights
The Bill of Rights is a mixture of social democracy and classical liberalism, although, with a ‘progressive’ judicial philosophy, the latter has often been ignored in favor of the former.
If interpreted reasonably, some of the rights in the Constitution are stronger than equivalents found in the West today. For instance, the right to freedom of association is very clear and has no provisos or exceptions (which a lot of other rights do have). The Constitution simply says, in section 18, that “Everyone has the right to freedom of association.” Can’t get any clearer than that. In theory, thus, workers who wish to associate with employers who want to pay them less than the minimum wage, have a constitutional right to do so. In practice, this right has been all but ignored.
Section 16, which protects freedom of expression, is equally clear if read without blinders. It says that everyone has freedom of expression, but this right does not apply to propaganda for war; incitement of imminent violence; or advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Whereas in America the courts had to ‘find’ exceptions to the First Amendment to avoid absurdities (i.e. it is not legal to establish a “Rape Advocacy Center” and go around threatening to rape specific women – that would be a threat of force that falls outside freedom of speech), in South Africa this is clearly spelled out. What is and what is not constitutionally-protected speech is quite clear from a reading of the Constitution itself.
Section 22 provides that all citizens have the right to choose their occupation freely. The practice of that occupation may be regulated — but not prohibited — by law. This, in other words, means that prostitution, dealing in drugs, etc. are all constitutionally permitted. This section has, of course, been perverted by our courts, despite its clarity. But as I mentioned before: the Constitution itself cannot be blamed for this, especially where its language is perfectly clear and unambiguous.
On the other hand, however, the Bill of Rights does include so-called ‘rights’ and provisions that lead to unlimited — rather than limited — government. There are three such provisions in the Bill of Rights that are worth mentioning here.
Section 8(2) of the Constitution says that the Bill of Rights does not only apply to government, but also to ordinary South Africans and companies. In other words, by evicting an illegal school from one’s private property, which should be a clear and innocent case of protecting one’s own property, the courts will likely find that doing that would constitute a violation of the section 29 right to a basic education. Section 8(2), thus, makes the Bill of Rights apply horizontally rather than simply vertically, which is very problematic. Ordinary South Africans and companies should not be forced to sacrifice their own liberty and property for one another — the only obligation any of us are under is to ensure we do not violate the liberty or property of another. Bills of rights are supposed to limit government power, and not limit other people from simply protecting and exercising their own rights.
The next problematic provision is section 9(2) of the Constitution, which, in full, provides:
“Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”
The problem here should be evident. It empowers government to take steps to achieve “full and equal enjoyment” of all the rights in the Bill of Rights — an impossible and undefinable feat.
If read without regard to the Rule of Law and other considerations of constitutionalism, this provision could mean that government is empowered to purposefully impoverish one part of the population to ensure they are enjoying their rights on an equal basis with those who are already poor. Government is currently using this provision to justify its stranglehold on the technology industry, because it seeks to centrally plan ICT until all South Africans are enjoying it equally, despite the fact that there is no right to ICT in the Constitution.
This section, of course, is also the basis on which affirmative action and Broad-Based Black Economic Empowerment rests. But this cannot be blamed on the Constitution, but should be laid at the feet of a very inactive and lacklustre classically-liberal jurisprudence among professors and public intellectuals.
There is no right to demographic representivity in the Constitution, thus it cannot be said that affirmative action and BBBEE are trying to ensure the “full and equal enjoyment” of that right. Furthermore, if this provision is read in conjunction with section 1(b) of the Constitution (as it should be), it cannot be applied along racial lines. Non-racialism is a Founding Provision of our constitutional order, and thus using section 9(2) to justify racist governance is not simply oppressive, but bad jurisprudence.
In each of the aforementioned headings I have shown that the Constitution is a mixed bag. The temporal problem permeates much of our highest law, but shouldn’t be a problem once enough circumstances in our society change. The separation of powers embedded in the Constitution is fair and standard, but does not go nearly far enough for our African context. And the Bill of Rights is quite classically-liberal, but also includes certain rights that undermine the idea of limited government.
The Constitution fails miserably in controlling for errors of interpretation by our superior courts, especially the Constitutional Court. A simple provision somewhere in the Constitution stating that all provisions must be interpreted in favorem libertatis (in favor of the liberty of the people) would have been a nice addition indeed.
It should be clear that the Constitution of South Africa is not the best in the world, as we see various examples, like the United States and Switzerland, which have far more limited governments than ours — which is the purpose of a constitution. But this does not necessarily that it should be shelved.
It’s a perfectly acceptable constitution
Despite the fact that it is not the ‘best’ constitution that ever was, the Constitution of South Africa is perfectly acceptable as far as constitutions go, and it gets criticised unfairly a lot from the both the left and right.
The right, mostly conservative Afrikaners, attack the Constitution for not adequately defending minority rights. But the right’s criticism is directed at the wrong place here. The Constitution does protect language and cultural rights, and particularly includes the unqualified right to freedom of association. The reason that these rights are seemingly not manifested, is because South Africa’s judiciary has interpreted the Constitution through the very distorted lens of so-called ‘Transformative constitutionalism’. In short, it has found things in the Constitution which are not there, and it has interpreted provisions which are there with a political agenda in mind. The Constitution as South Africans know it, and the Constitution the courts are working with, are not the same thing. We need a rediscovery of the Constitution and a radical change to our current, flawed, judicial philosophy.
The left, on the other hand, mostly radical socialists in the African National Congress and Economic Freedom Fighters, attack the Constitution for not having adequately fostered socio-economic ‘Transformation’ for South Africa’s poor masses. The left’s criticism, too, is directed at the wrong place. The Constitution contains a host of ‘welfare rights’ and creates far-reaching social service obligations. The reason that socio-economic empowerment has gone haywire in South Africa is because government decided to pursue the emancipation of the people in the most stupid and most disproven way known to man: central planning and paternalism, neither of which are sanctioned by the text of the Constitution. Whereas the Constitution leaves a wide berth for the private sector and market forces, with the State, for instance, taking care of funding and support in the background, to uplift the poor into the middle class, government and ministers who wish to leave a personal legacy decided to try and do what nobody has done before: ignore economics and run the country on good intentions alone. The government took only a handful of constitutional provisions — while ignoring others — and used them, dishonestly, to justify upending the economy all in the name of ‘Transformation’.
The Constitution is not libertarian and is not socialist. It is a product of compromise, and should be understood as such. But with a currently-impoverished constitutional jurisprudence, there is much room for classical liberals to participate in constitutional discourse and discover what the Constitution by its nature was always supposed to be: a substantive limitation on government power.
My book, The Constitution and the Rule of Law: An Introduction, which will be published later this year, explores many of the themes in this article. A book I hope to publish next year, with the working title of Pillars of Constitutionalism, will explore in more depth what makes a constitution a good constitution, with particular reference to the South African context. Be on the lookout for both!