The Constitution of the Republic of South Africa, 1996, resulted from a long process of popular struggle, multiparty negotiations, and democratic deliberations which involved politicians, lawyers, and civil society. The Constitution can be said to represent a break from a ‘culture of authority’, in which Parliament was sovereign, and the validity of any law that Parliament passed could only be challenged in court on extremely limited grounds. The Constitution replaced this culture of authority with a ‘culture of justification’- in which every exercise of power must be justified, and be demonstrated to be in accordance with the Constitution.
A multi-party negotiating process resulted in the adoption of an interim constitution, and a set of Constitutional Principles, with the intention that it would be replaced by a final constitution which would be negotiated by a democratically elected Constitutional Assembly, which was elected on 27 April 1994. The final Constitution would have to be certified by the Constitutional Court that it complied with the Constitutional Principles. A final Constitution was submitted to the Constitutional Court for certification on 8 May 1996, but it ultimately had to be amended, as the Constitutional Court held that certain provisions did not comply with the Constitutional Principles. The amended final Constitution was certified by the Constitutional Court on 4 December 1996, and came into operation on 4 February 1997.
The Constitution sets out rules governing the exercise of authority in the country, and it determines the powers which are given to government, as well as the limits those powers.
Chapter 1 of the Constitution contains the Founding Provisions. Section 1 sets out the fundamental principles underlying our Constitutional state, and it states as follows:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness, and openness.’
The Constitution introduced the ‘doctrine of Constitutional Supremacy’ into our legal system. As stated in section 2 of the Constitution, “[t]he Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” This means that all laws and government conduct must comply with the Constitution, or they are invalid to the extent that they are inconsistent with the Constitution.
Chapter 2 of the Constitution contains a Bill of Rights, which the state is bound to respect, protect, promote, and fulfill. The Bill of Rights provides protection for a very wide range of rights, including the rights to life, equality, human dignity, and freedom and security of the person, rights of access to health care, social security, and housing, children’s rights, access to information, and just administrative action. The Bill of Rights applies to all laws, and it binds all of the branches of government (which is discussed further below), and all public institutions.
According to section 36, the rights in the Bill of Rights can be limited –
“…only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors, including:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
This requires the government to justify any limitation of the fundamental rights in the Bill of Rights.
The Constitution also establishes all of the powers and functions of all of the branches and spheres of government, which will be discussed further below. The powers and functions of the President (in Chapter 4) and Parliament (in Chapter 5) are first set out. Chapter 6 establishes the Provincial Governments, and Chapter 7 establishes Local Governments. The powers and functions of the Courts are described in Chapter 8, and Chapter 9 establishes various State Institutions Supporting Constitutional Democracy, which includes the Human Rights Commission, the Public Protector, and the Commission for Gender Equality. Chapter 10 establishes the Public Administration, which is critical for implementing the country’s laws, and Chapter 11 provides for the Security Services for the country. Chapter 13 deals with Finances.
The Constitution, therefore, is a comprehensive document which is the foundation for our political order. It establishes all of the fundamental institutions which are crucial for the functioning of our constitutional democracy, and sets out their powers and functions. It also enshrines all of the fundamental principles on which our democracy is based, and emphasizes that the protection of and respect for human rights is fundamental to our democracy.