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From Apartheid to Majority Rule: a Glimpse Into South Africa's Journey Towards Democracy [Article]

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From Apartheid to Majority Rule: a Glimpse Into South Africa's Journey Towards Democracy [Article] From Apartheid to Majority Rule: A Glimpse into South Africa's Journey towards Democracy [Article] Item Type Article; text Authors Jenkins, Daisy M. Citation 13 Ariz. J. Int'l & Comp. L. 463 (1996) Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ) Journal Arizona Journal of International and Comparative Law Rights Copyright © The Author(s) Download date 29/09/2021 11:14:00 Item License http://rightsstatements.org/vocab/InC/1.0/ Version Final published version Link to Item http://hdl.handle.net/10150/659360 FROM APARTHEID TO MAJORITY RULE: A GLIMPSE INTO SOUTH AFRICA'S JOURNEY TOWARDS DEMOCRACY Daisy M. Jenkins I. INTRODUCTION After so many centuries, we will finally have a government which represents all South Africans. After so many centuries, all South Africans are now free.... The greatest challenge which we will face in the government of national unity will be to defend and nurture our new constitution. Our greatest task will be to ensure that our young and vulnerable democracy takes root and flourishes.... I shall lay down my responsibilities as state president.... I shall be handing the presidency to Mr. Mandela .... I shall be surrendering power, not to the majority of the moment, but to the South African people. I shall do so with the strong conviction that henceforth sovereignty will ultimately lie with 1 them and in the constitution. On May 10, 1994, Nelson Rolihlahla Mandela was inaugurated as South Africa's first black president. As he lowered his hand and spoke the last words of the presidential oath, Vuyelwa Pitje, one of the many black South Africans who gathered with pride and rejoicing to watch the historic event, felt shackles fall from her ankles.2 "Now I can walk anywhere, anytime, and I don't have to ask, 'Am I allowed in here?' she exclaimed. "I feel like a human being now!" She almost sang the last few words and began to dance, smiling from ear to ear.3 She was undaunted by the fact that she and so many others had to watch the inauguration from a huge screen on the Union Buildings' lawn in Pretoria.4 5 Knowing that liberation had begun was enough. 1. F.W. De Klerk (former president of South Africa), Speech Excerpts Series: South Africa Elections, ST. PETERSBURG TIMES, May 3, 1994, at 10A. 2. The World's HappiestNation, Mandela's Oath, Event to Treasure, CINCINNATI POST, May 11, 1994, at 2A [hereinafter World's Happiest Nation]. For black South Africans, the inauguration was the symbolic end of 350 years of racial oppression. Id. 3. Id. 4. ANC's Mandela Inauguratedas South Africa's first Black President-Electedby Assembly Unopposed, May 12, 1994, available in Westlaw, FACTS ON FILE WORLD NEWS DIGEST FACTS ON FILE, File No. 2256002 [hereinafter ANC's Mandela]. President Mandela was inaugurated at the Union Buildings' amphitheater in Pretoria, the administrative capital of the Republic of South Africa, in central Transvaal, 35 miles northeast of Johannesburg. The amphitheater, built in 1910 by whites who intended the structure to be symbolic of white power and domination over the black community, 464 Arizona Journal of Internationaland Comparative Law [Vol. 13, No. 2 The road to Nelson Mandela's historic presidency was paved by the efforts of black and white leaders who, for three years, painfully negotiated to create a new, color-blind South African constitution. 6 President De Klerk, African National Congress (ANC) leader Nelson Mandela and other senior political leaders ratified the new constitution on November 18, 1993, preparing the way to free and fair elections. 7 After eight decades of struggle in South Africa, led by the African National Congress, "the day finally arrived when all South Africans, black and white, cast their ballots equally in a national election for a government of their choice." 8 For the first time in their history, South Africans of all races, all social and economic backgrounds, will grapple with the promises and uncertainties of majority rule and constitutional democracy. 9 South Africa's new constitution marks a fundamental change in the way South Africa is governed-from a policy of racial separation and suppression to one of negotiation and conciliation.10 Of equal importance, for the first time is perched atop Meintjies, the highest point on Pretoria. Approximately 50,000 people crowded into the open park land below the amphitheater to watch the inauguration on a large-screen television. Id. 5. World's Happiest Nation, supra note 2, at 2A. 6. New Constitution Abolishes Apartheid, South African Leaders Agree To Grant Blacks Equal Rights, THE STATE JOURNAL-REGISTER (Springfield, II1.), Nov. 16, 1993, at 3. 7. Id.; see Vivienne Goldberg, South Africa: Private Law In TransitionffThe Effect Of The New Constitution, 33 U. LOUISVILLE J. FAM. L. 495, 495 (1994-95). The CONST. oF THE REPUBLIC S. AFR. ACT 200 (1993) came into operation the day of the national election, Apr. 27, 1994, replacing the interim constitution for postapartheid South Africa. Id.; see also Paul Taylor, South African Leaders OK Constitution, MORNING NEWS TRIB. (Tacoma, Wash.), Nov. 18, 1993, at A3. The new constitution provided for a bill of rights and electoral laws that ended the oppressive apartheid system that stripped the majority of basic human rights and imprisoned Mandela for 27 years. Id. 8. Danielle DeBruyn, The Road to Democracy: South Africa's Democratic Elections, NAT'L B. Ass'N MAG., May-June 1994, at 8. The African National Congress [hereinafter ANC], Africa's oldest liberation movement founded in 1912, believed that only active struggle could shift the balance of forces in South Africa in favor of the oppressed black majority. Although the ANC had led several militant demonstrations after its founding, it was the Program of Action in 1949 that set the course of active mass resistance to the system of white domination. During the 1950s, the ANC became the single most powerful voice against the system of racial tyranny, as reflected by its leadership in the women's actions against passes, uprisings of the landless rural masses, bus boycotts, stay-at-homes, and other actions against white minority government. Id. 9. See Steven Keeva, Defending The Revolution Armed With A First-Ever Bill Of Rights, South Africa's Lawyers Must Learn A New Way Of Thinking In Order To Protect Constitutional Freedoms, 80 A.B.A. J., Apr. 1994, at 50. 10. Randal S. Jeffery, Social and Economic Rights in the South African Constitution: Legal Consequences and Practical Considerations, 27 COLUM. J.L. & SoC. PROBS. 1, 2 (1993). The policy shift is generally recognized to have occurred on Feb. 2, 1990, when South African President De Klerk, in a speech to Parliament, lifted 1996] From Apartheid To Majority Rule ever, South Africa's new constitution will be shielded from the political process." A new constitutional court12 invested with the final say on all constitutional matters, including questions of individual rights and the validity of acts of Parliament, will replace the nation's historically all-white Parliament, which has served as supreme maker and arbiter of the law.' 3 The court will also certify a new constitution for compliance with the thirty-three constitutional principles agreed upon during negotiations.14 Despite the dramatic changes brought about by the new constitution, there is still cause for much concern for the majority of South Africans, particularly black South Africans. They continue to face staggering poverty, broken communities, crushed ambitions, and hopelessly undemocratic institutions. 15 If South Africa is to succeed as a rights-based, constitutional democracy, lawyers and judges must ensure that the fundamental rights of black South Africans are both well defined and protected.' 6 Yet, black South Africans have a profound distrust of the law and the courts, which they perceive as the white man's justice. 17 Indeed, such distrust is well-founded. Although South Africa is a diverse nation, the South African bar and judiciary are overwhelmingly white males.' 8 As the Republic of South Africa prepares to dismantle apartheid, it is once again the white man who will be making the laws. 19 Consequently, the critical question, as South Africa dismantles apartheid and moves toward a democratic form of government, is whether the white judiciary will interpret and enforce the new constitution in a manner that protects the fundamental rights of blacks, as well as the white minority. the ban on 33 political organizations, announced the imminent release of Nelson Mandela from prison, and committed the National Party (the majority ruling party since 1948) to negotiations of the new constitution. Id. at 54 n.4. 11. See id. at 3. South Africa now has a secure constitution which will not be under the control of Parliament. Id. 12. Id. at 2; see Keeva, supra note 9, at 57. The ANC proposed that the constitutional court serve as the "watchdog of democracy" in South Africa to ensure a constitution that is sovereign. Id. 13. Keeva, supra note 9, at 51. If a judge made a ruling that didn't meet the Parliament's approval, it simply passed a new law. Lawyers who disagreed with Parliament's rulings had no other authority to which they might appeal. There was no authority greater than parliament. Id. 14. Id. at 52. Over the next five years, a joint conference of a new bicameral Parliament is to revise the new constitution. Id. 15. Id. at 55. 16. Id. at 52. 17. Id.at 55. 18. Keeva, supra note 9, at 60. "South Africa has a British-style legal system in which attorneys consult with clients and advocates try cases. There are 8368 attorneys now in practice, of whom 1178 are people of color.
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