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Comparative Constitutional Law. Class 21 November 5, 2008 South Africa: Origins and Structure of its Constitutional System; the SA Constitutional Court. History of Apartheid. Nelson Mandela. Member of Thembu (Xhosa) royal family Became active in the ANC.

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Comparative constitutional law

Comparative Constitutional Law

Class 21

November 5, 2008

South Africa: Origins and Structure of its Constitutional System; the SA Constitutional Court

Nelson mandela
Nelson Mandela

  • Member of Thembu (Xhosa) royal family

  • Became active in the ANC.

  • Acquitted in famous Treason Trial in 1961

  • After ANC banned, Mandela went abroad to set up its guerilla wing, Umkhonto we Sizwe (MK)

  • 1961: SA leaves Commonwealth

The road to imprisonment
The road to imprisonment

  • Later Mandela went underground in SA

  • Caught in 1963 and sentenced to 5 years in prison for leaving country illegally

  • While in prison, other ANC leaders caught in Rivonia Raid and brought to Robben Island for 1964 Rivonia Trial.

  • He and other members of ANC High Command sentenced to life imprisonment for “sabotage,” then a capitol offense

Robben island
Robben Island

  • Political prisoners put to hard labor on chain gangs

  • Mandela never mistreated, but witnessed much abuse

  • By the early 1980s, foreign pressure mounting for the release the Mandela and other political prisoners

  • 1982 Mandela and 4 others moved to Pollsmoor Prison.

1970s and 1980s
1970s and 1980s

  • Increasing international isolation for SA

  • UN resolutions of condemnation

  • Bans on sports teams

  • US, UK and 23 other nations enact trade sanctions by end of 1980s

  • 15-20% minority of whites vote for Progressive Party that opposes apartheid

Anc np secret negotiations
ANC-NP secret negotiations

  • In 1985 Minister of justice and prisons Kobie Coetsee was receptive to Mandela’s efforts to meet with him

  • They met in 11/1985 at a hospital where Mandela was recovering

  • Coetsee: “Some intuition told me I shouldn’t see Mr. Mandela behind bars.”

  • Secret meetings continued for 4 years. No real progress was made.

  • At this time: continuing violence, near constant states of emergency

Anc np secret negotiations1
ANC-NP secret negotiations

  • 1988 Mandela moved to relatively luxurious house at Victor Verster prison

  • Mandela taken out on secret car trips to expose him to realities of outside world and prepare him for release.

1980s continuing escalation of violence
1980s continuing escalation of violence

  • 1989 FW de Klerk becomes PM after Botha’s stroke. De Klerk former conservative NP member.

  • Government talks with ANC leaders: 1989-1990

F w deklerk lifts ban on anc releases mandela
F.W. deKlerk: lifts ban on ANC, releases Mandela

  • On 2 February 1990, president F.W. deKlerk reversed the ban on the ANC and other anti-apartheir organizations.

  • Announced Mandela’s release from prison

  • Mandela released on 11 February 1990. Event broadcast live all over the world

Challenge how to negotiate democracy write a constitution
Challenge: how to negotiate democracy, write a Constitution

  • ANC – wanted democratically elected constitutent assembly

  • NP government wanted extended transition period in which constitution would be negotiated

  • IFP wanted depoliticized process of expert constitution makers, which would be ratified in national plebiscite

  • Eventually agreed on 2 stage process : (suggested by Mandela): all-party congress to negotiate route to constituent assembly. CA would not have a free hand in drafting final constitution – convention could lay down binding principles restraining it.


  • Conference for a Democratic South Africa

  • Met in Dec 1991

  • 19 groups represented, but not IFP leader Buthelezi

  • NP wanted drawn out negotiations

  • ANC wanted quick process

  • Conflict between de Klerk and Mandela

  • Whites only referendum followed in March 1992 on whether to continue with reforms. Answer yes by 2/3 majority.

Codesa ii

  • Collapsed after Boipatong massecre where 46 people killed by security forces

  • ANC withdrew from negotiations, accusing government of complicity

  • Militant wing of ANC was strenghened

  • Violence continued

Resumption of negotiations
Resumption of negotiations

  • Through bilaterial negotiations between ANC and NP

  • 2 key negotiations: Cyril Ramaphosa (ANC) and Roelf Meyer (NP)

  • Joe Slovo, leader of South African Communist party proposed breakthrough "sunset clause“ in 1992: for a coalition government for the five years following a democratic election, including guarantees and concessions to all sides.

Multiparty negotiating forum
Multiparty Negotiating Forum

  • Gathered first in April 1993

  • Negotiations almost destroyed by assassination of Chris Hani on April 10

  • Interruption to negotiations in June 1993 when World Trade Center stormed by right-wing Akfrikaner group

  • Interim Constitution ratified in November 1993.

Interim constitution
Interim Constitution

  • Entrenched Government of National Unity for 5 years to ensure legal continuity required by NP

  • Provided for final constitution to be creaetd within 2 years from first sitting of National Assembly

  • 2/3 of members of National Assembly and Senate (Constitutional Assembly) had to vote for Constitution

Interim constitution1
Interim Constitution

  • Much of constitution addressed fears of white minority that there would be vengeance

  • Cabinet seats given to minority parties for first 5 years. Power sharing in executive power by minority parties – president party running first, 2 deputy presidents (parties running 2 and 3 unless failed to get more than 20% of popular vote, in which case to majority party)

  • Powers to provincial governments

  • Entrenched BOR safguarded by powerful constitutional court

  • House of Assembly (400 members), Senate of 90 (2 from each province)

1994 elections victory to anc in alliance with communists cosatu
1994 elections: victory to ANC (in alliance with Communists/Cosatu)

  • President: Nelson Mandela

Truth and reconciliation commission
Truth and Reconciliation Commission Communists/Cosatu)

  • The TRC was set up in terms of the Promotion of National Unity and Reconciliation Act, No 34 o 1995

  • Based in Cape Town

  • Mandate: bear witness to, record, and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, reparation and rehabilitation

  • Final Report 2003

1994 1999
1994-1999 Communists/Cosatu)

  • Government of national unity

  • 1996 Final constitution: how is it created? Certified?

  • 1999 second democratic elections: Thabo Mbeki (ANC exile for 28 years) becomes President. ANC increases majority.

  • Relected to 2d term 2004

Difficult balance for sa
Difficult balance for SA Communists/Cosatu)

  • Between supporting white-dominated business community and keeping ANC’s promises to core constituency of poor black majority

  • Mbeki: controversial over failure to overtly criticize Robert Mugabe and stance toward AIDS (though now official government policy that HIV causes AIDS)

Resignation of mbeki
Resignation of Mbeki Communists/Cosatu)

  • Criticized by ANC over firing of Jacob Zuma in 2005

  • Barred from seeking a 3rd term of office

  • Ran for leadership of ANC and lost, in close race, to Zuma

  • Allegations of interference in corruption trial of Zuma

  • ANC executive committee said it would no longer support him and Mbeki resigned

  • Current temporary president Motlanthe, Zuma’s deputy

  • Elections scheduled for 2009

South african bor
South African BOR Communists/Cosatu)

  • Which constitutions seem to have had the biggest influence on the SA BOR?

  • Horizontal effect?

  • Are there internal rules of interpretation?

S 39 1
S. 39(1) Communists/Cosatu)

  • Must interpret constitution to “promote the values that underlie and open and democratic society based on human dignity, equality and freedom” and consider international law

  • Can also consider foreign law

Sa constitutional court
SA Constitutional Court Communists/Cosatu)

  • 11 justices

  • Appointment of justices

  • Background

  • Diversity

Sa constitutional court1
SA Constitutional Court Communists/Cosatu)

  • 11 justices

  • Appointment of justices

  • Terms: 12 years (7 in interim); 70 year mandatory retirement age

  • Background

  • Diversity