Assessing the Performance of the South African Constitution Assessing the Performance of the South African Constitution Assessing the Performance of the South African Constitution Contributing authors David Bilchitz Daryl Glaser Andrew Konstant Linette Du Toit Khomotso Moshikaro Merle Werbeloff International IDEA resources on constitution-building processes © 2016 International Institute for Democracy and Electoral Assistance International IDEA Strömsborg SE-103 34, STOCKHOLM SWEDEN Tel: +46 8 698 37 00, fax: +46 8 20 24 22 Email: [email protected] Website: www.idea.int The electronic version of this publication is available under a Creative Commons Attribute-NonCommercial- ShareAlike 3.0 licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information on this licence see: <http:// creativecommons.org/licenses/by-nc-sa/3.0/>. International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. Graphic design: Turbo Design Cover image: The entrance to South Africa’s Constitutional Court (Flickr/ Africa Deluxe Tours) ISBN: 978-91-7671-053-1 Contents Acknowledgements ..................................................................................................................... 6 Abbreviations ..................................................................................................................................... 7 Executive Summary .................................................................................................................... 8 1. Introduction ................................................................................................................................ 17 About this project .......................................................................................................................... 17 Structure of this report ............................................................................................................... 17 Methodology: the performance of a constitution ...................................................... 18 2. Determining the internal goals of South Africa’s Constitution ............................................................................................................................... 27 Background to the Constitution ........................................................................................... 27 The constitutional negotiation process ............................................................................. 32 The goals of the Constitution ................................................................................................. 35 3. Assessing the performance of South Africa’s Constitution ... 61 Piloting the methodology ......................................................................................................... 61 Overarching themes from the report ................................................................................. 67 4. Conclusions and recommendations ................................................................ 91 Conclusions ....................................................................................................................................... 91 Recommendations ......................................................................................................................... 93 References ............................................................................................................................................. 102 Annex. Constitutional legitimacy: A survey of the Gauteng adult population ......................................................... 109 About the authors ......................................................................................................................... 118 About International IDEA ...................................................................................................... 120 International IDEA 5 Acknowledgements This report was prepared for International IDEA by the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a Centre of the University of Johannesburg. A project such as this could not take place without the efforts of several individuals who have often gone beyond the call of duty. Andrew Konstant, Linette Du Toit, and Khomotso Moshikaro were the key researchers at SAIFAC during 2015 responsible for much of the detailed research and writing. Rita Ozoemena, a post-doctoral fellow at SAIFAC, conducted some preliminary research. Raisa Cachalia joined SAIFAC in 2016 and has helped immensely with the finalization and technical finishing of the report. Professor Daryl Glaser, a consultant to the project, has added a valuable political science perspective to the team and been involved in research and writing. Professor David Bilchitz was the team leader involved in some of the written content and research and the review of all the chapters of the longer report. Catalyst Consulting was contracted to conduct the survey. We thank the team from Catalyst, consisting of Mike Charnas, Lynette Benjamin and Merle Werbeloff, who authored the statistical report. We would also like to thank Sumit Bisarya from International IDEA and Tom Ginsburg from the University of Chicago, who provided oversight of the project, reviewed the documents and provided important critical comments that have helped to improve the report. 6 International IDEA Abbreviations ANC African National Congress CCMA Commission for Conciliation, Mediation and Arbitration CODESA Congress for a Democratic South Africa CP Constitutional Principles IFP Inkatha Freedom Party JSC Judicial Services Commission NCOP National Council of the Provinces NPA National Prosecuting Authority PAC Pan Africanist Congress PR Proportional representation SAIFAC South African Institute for Advanced Constitutional, Public, Human Rights and International Law TRC Truth and Reconciliation Commission UDF United Democratic Front International IDEA 7 Executive Summary This report assesses the performance of the South African Constitution over the past 20 years. The idea that the performance of a constitution can be evaluated is a relatively recent one. With the growth and development of constitution making over the past three decades, an understanding of what constitutions seek to achieve and how they achieve has become increasingly important. Are there better or worse ways of drafting constitutions for the purposes of achieving desired outcomes? How are we to understand the interaction between particular provisions or elements of a constitution and the concrete realities that unfold after the moment of constitution drafting? This report—like the full-length study on which it is based—focuses on key tensions and stress points that have arisen in the past 20 years within the South African political community as a method of analysing some of the key goals of the Constitution and whether they have been met. It draws on case law, reports by the government and non-governmental organizations, and other empirical data. As part of the project, an empirical survey was undertaken to provide an understanding of the attitudes of members of the public in the most populous province of South Africa, Gauteng, to a number of key dimensions of the Constitution. The survey provided empirical data that enabled the assessment to take place. Methodology: evaluating internal and external goals This report pilots a guiding methodology for assessing constitutional performance. The methodology outlines two perspectives from which the performance of a constitution can be engaged: an ‘internal’ one that seeks to evaluate the performance of the constitution against its own self-declared goals; and an ‘external’ one that evaluates the constitution against a set of 8 International IDEA general standards and normative criteria about what any good constitution should seek to achieve. The project team identified two broad internal goals that the Constitution seeks to achieve. The first involves understanding the Constitution as a peace treaty that was designed to avert a civil war and enable a unified South African polity to be established. The second concerns the fundamental transformation of South African society, seeking to redress the key harms of the past and develop the society into a future founded on social justice. We divided this transformative goal into four sub-goals: 1. the change was designed to take place through legal processes and to develop legal doctrines so as to enhance accountability and reason- giving; 2. the entire political system was to be overhauled so as to establish a functioning, democratic system of government responsive to all individuals in the polity; 3. a unified state was designed to be established across the whole territory of South Africa whilst recognizing, and indeed, celebrating the diversity of its peoples; and 4. an ambitious vision was outlined to achieve social justice and, in particular, to advance the economic well-being of all who live within South Africa’s borders. The second perspective is ‘external’ and evaluates the Constitution against a set of general standards and normative criteria about what any good constitution ‘should’