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Law: Dialogues in a Constitutional Democracy – South Africa

The South African Constitution, and in particular its Bill of Rights, is widely recognised as one of the most progressive in the world. Nevertheless, as venerated as it is, this Constitution remains a written document and, as any constitution, needs action from government and citizens alike to transform it into a living document and ensure its full applicability.

At the beginning of this month, the Democratic Rights and Governance Unit, an applied research unit at the University of Cape Town, South Africa, held a week-long series of seminars under the theme of “Constitution Week”. This event came in the context of increasing tensions between the different branches of power in South Africa, and increasing criticism of the judiciary, seen by some as a threat to its independence.

The aim of Constitution Week was to examine whether the South African Constitution is working, and what challenges lie ahead for our young democracy. What emerged from the different seminars is that a vibrant and healthy constitutional democracy needs to generate dialogues, and that these dialogues can be found at numerous levels, thus creating and promoting the dynamics that are essential for a constitutional democracy.

A first dialogue, as described by the Chief Justice of South Africa, honourable Sandile Ngcobo, is the “constitutional dialogue” that exists between the three branches of power. Tensions will naturally arise between the three branches of power in democracies where the boundaries between these branches are not clearly marked, as is the case in South Africa, since there is overlap between their respective powers.

These tensions don’t necessarily mean the relationships between these branches have to be antagonistic, Chief Justice Ngcobo implied. Such overlap means that the different branches are brought to converse with each other. Such conversation is sometimes imposed by the Constitution itself, for example where the judiciary has the power to invalidate unconstitutional legislation.

The branches must remain conscious of these boundaries, to avoid an intrusion of one branch of government into the sphere of power of another. For example, the judiciary should not be carried away by the enormous powers that are conferred upon it and intervene in the spheres of competence of the executive or the legislature. Such awareness dictates that the different branches of powers must respect and trust each other. As the Chief Justice emphasised, “Without this trust and good faith, the constitutional dialogue will be meaningless”. And – indirectly referring to the current South African context – the Chief Justice insisted that trust will only survive if the independence of the judiciary is guaranteed, and if the executive and the legislature embrace the constitutional values of accountability, responsiveness and openness. This depicts two sides of the same coin: they effectively hold each other accountable, but also accept to be held accountable.

A second level of dialogue was identified by Constitutional Court Judge Bess Nkabinde, former Constitutional Court Judge Albie Sachs and a panel of students, and pertains to the dialogue that exists between the different courts. The South African Constitution imposes on every court to “promote the spirit, purport and objects of the Bill of Rights” when interpreting legislation or developing the common law. Nevertheless, the hierarchy that exists between courts also imposes certain directions and limitations on how the courts can infuse their judgments with constitutional values. The question was therefore put as to whether the Bill of Rights is developed from the lower courts up, or from the Constitutional Court down.

It transpired that in the courts’ common mandate to uphold the common law, legislation and the Constitution, there will be disagreement on how to interpret and develop this holistic set of rules. Nevertheless, a dialogue between the courts must remain; it must be courteous, and always guided by the Constitution. If the courts all speak the same language, while all being able to contribute to the debate, a stronger judiciary will emerge. The panel further recalled that the kind of dialogue that is fundamental for a strong judiciary should not only happen between the courts, but is also essential outside of the courtroom. Indeed, a better dialogue within society – including between the different branches of government – would allow for numerous conflicts and tensions to be resolved before the judiciary is called in to intervene.

The need for a third level of dialogue appears from the tension between tradition and customary law on the one hand, and democracy on the other. Some 17 million rural South Africans continue to be under the authority of traditional leaders. However, their role remains controversial, as their powers are seen by some to be inimical to democracy and to the equal freedom and dignity for all promised by the Constitution.

The speakers on this panel engaged with the question of the role of traditional leaders in a constitutional democracy, arguing that the efforts to recognise and respect the institution of traditional leadership in post-apartheid South Africa have been inappropriate, and have not been based on consultation and appropriate dialogue with affected communities. They pointed out that the recognition of traditional authority since 1994 has merely replicated apartheid era geographical tribal authorities, and that the powers of traditional leaders in law exceed their traditional authority. According to one of the panellists, they therefore constitute and unelected fourth tier of government.

A fourth level of dialogue was identified during the final session of Constitution Week, a lively open-air debate themed on “What builds a nation and what role the constitution can play in unifying society”, a particularly relevant topic in a diverse and often divided society as South Africa. Led by a team of panellists who co-authored The Vuvuzela Revolution, the debate kicked off with a question on how last year’s World Cup in South Africa helped – or not – to bring South Africans together.

It was an unstructured but fruitful exchange between people from different backgrounds about how this sports event brought society together. It transpired from the vivid exchanges that people living in a diverse society often have more in common than they realise, and that a Constitution is a fundamentally important instrument to ensure that society addresses the tensions that necessarily exist within it more meaningfully.

It emerged once again from the seminars organised during Constitution Week that dialogue is fundamental to democracy. With dialogue comes mutual understanding, trust, and good relationships. However, it was important to recall that it is only if each branch of government, each court, and each member of society engages with one another and with the Constitution that a constitution, in South Africa and elsewhere in the world, will remain a living tool for the advancement of fundamental rights and the consolidation of democracy.

Gwenaelle Dereymaeker is an associate researcher at the Democratic Governance and Rights Unit. A jurist from Belgium, she worked in several international organisations before moving to Cape Town over a year ago, where she completed an LL.M. in human rights law, and then joined the Democratic Governance and Rights Unit.

About Gwenaelle Dereymaeker

Gwenaelle Dereymaeker
Gwenaelle Dereymaeker has worked as an International Legal Officer at the War Crimes Chambers, State Court of Bosnia and Herzegovina, as an Advisor at the Permanent Mission of Belgium to the United Nations, New York and as an Intern at the International Criminal Tribunal for the former Yugoslavia.

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