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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
  • 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
  • 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
  • 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
  • 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
  • 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)
  • 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
  • 11 justices
  • Appointment of justices
  • Background
  • Diversity
sa constitutional court1
SA Constitutional Court
  • 11 justices
  • Appointment of justices
  • Terms: 12 years (7 in interim); 70 year mandatory retirement age
  • Background
  • Diversity