The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

2021 ◽  
Vol 56 (1) ◽  
pp. 18-33
Author(s):  
Lucky Mathebe
Keyword(s):  
South Africa ◽  
Constitutional Court ◽  
Transformative Change ◽  
Democratic Accountability ◽  
Constitutional Democracy ◽  
The Public ◽  
Crime And Punishment ◽  
Black And White ◽  
Marginalised Groups

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.

‘Guardian of the Solemn Pact’ – The Role of the Constitutional Court in South Africa’s Constitutional Transition

2020 ◽  
Vol 23 (1) ◽  
pp. 355-385
Author(s):  
Brynne Guthrie
Keyword(s):  
South Africa ◽  
Political Context ◽  
Constitutional Court ◽  
Constitutional Democracy ◽  
Unique Role ◽  
The Public ◽  
The Impact

The Constitutional Court of South Africa has played a unique role in the country’s constitutional transition. This paper starts by detailing the historical and political context of the Interim Constitution which created the Constitutional Court and the constitutional principles. The article describes the approach of the Court in the First Certification Judgment (1996), analysing the impact of the Constitutional Court’s decision on the drafting of the final Constitution and the public more generally, before briefly outlining the role that the Court continues to play in protecting constitutional democracy as a ‘Guardian of the Solemn Pact’.

scholarly journals Legal Mechanisms for Protection of Migrants' Rights by the Public Authorities of the Russian Federation

2018 ◽  
Vol 9 (4) ◽  
Author(s):  
Ksenia Minakova
Keyword(s):  
Russian Federation ◽  
Migration Policy ◽  
Constitutional Court ◽  
Special Role ◽  
Public Authorities ◽  
Normative Documents ◽  
The Public ◽  
The Russian Federation ◽  
Migrants Rights

The article analyzes methods of ensuring the migrants rights by the public authorities of the Russian Federation, the individual elements of the migration policy of the Russian Federation relating to the activities of public authorities. It considers the activities in the field of protection of the migrants rights by such authorities as the Russian President's Office for Constitutional Rights of Citizens, the Presidential Council for Civil Society and Human Rights, the Council for Interethnic Relations, General Directorate for Migration, Chief Directorate for Migration Issues of Ministry of Internal Affairs of the Russian Federation, their normative documents, that regulate their activities. It examines separately the activities of the RF Government in the field of protection of the migrants rights, as well as judicial authorities; it identifies the special role of the RF Constitutional Court in the field of ensuring the rights of migrants, refugees, the internally displaced and stateless persons. It underlines the role of authority bodies of the RF entities in ensuring the migrants rights in terms of Irkursk Oblast. The article offers to differentiate strictly the role of each authority body in the field of migrants rights protection, as well as to pay specific attention to regulation of activities of the FR entities authority bodies in this direction.

The Resilient Constitution

2021 ◽  
pp. 277-309
Author(s):  
David Dyzenhaus ◽  
Alma Diamond
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Extreme Pressure ◽  
The Face ◽  
Justice Process ◽  
The One

This chapter evaluates the so called 'transitional constitution' of South Africa and the 'permanent constitution' of Colombia. Through a comparative approach, it contends that constitutions are better understood in terms of their resilience rather than either being transitional or permanent, and that a 'resilient constitution' is the one capable of springing back even after being subjected to extreme pressure, as long as leaders maintain their commitment to governing within the limits of the law. In this sense, the differences between the Colombian transitional justice and the South African case do not stem primarily from the 'permanence' of its Constitution, but rather from the difficulties and tensions inherent to any transitional justice process, because it derives from some of the very rights it is designed to promote. The chapter then details how the jurisprudence of the Colombian Constitutional Court on transitional matters can be understood as having moved from an understanding of the Constitution as permanent, to one of resilience that does not represent a new power grabbed by the Court. Rather than that, it signals an understanding of the role of the Court in maintaining a constitutional order even in the face of existential threats to it.

Reason, argument, and agitation

2020 ◽  
pp. 417-449
Author(s):  
David A. Clark
Keyword(s):  
South Africa ◽  
South African ◽  
Community Action ◽  
Amartya Sen ◽  
Democratic Deficit ◽  
Joint Work ◽  
The Public ◽  
Positive Results ◽  
India And China

Amartya Sen has argued that democracy has intrinsic and instrumental significance for economic and social development. In joint work with Jean Drèze, he has shown that democratic pressures can produce positive results in democratic and non-democratic nations alike. An Uncertain Glory briefly discusses the BRIC (Brazil, Russia, India and China) nations in this regard, but is inexplicably silent about South Africa (the final member of the BRICS). Can South Africa follow in the footsteps of the BRIC nations? Or might the South African brand of democracy really fall short? Reaffirming Drèze and Sen’s conclusion for India, this chapter argues there are grounds to be ‘contingently optimistic’ about the role of public participation in South Africa—despite the massive democratic deficit the country has inherited. This is illustrated through three case studies of participation focusing on pressure for HIV/AIDS treatment, the role of the public protector, and community action in Bokfontein.

scholarly journals Mostly ‘black’ and ‘white’: ‘Race’, complicity and restitution in the non-fiction of Antjie Krog

Literator ◽  
2016 ◽  
Vol 37 (1) ◽  
Author(s):  
Jacomien Van Niekerk
Keyword(s):  
South Africa ◽  
Black People ◽  
Partial Answer ◽  
White People ◽  
White Race ◽  
Black And White ◽  
Non Fiction ◽  
The Way

This article analyses the role of ‘race’ in Antjie Krog’s non-fiction trilogy Country of My Skull (1998), A Change of Tongue (2003) and Begging to Be Black (2009). It explores her explicit use of terms such as ‘heart of whiteness’ and ‘heart of blackness’. Claims that Krog essentialises Africa and ‘black’ people are investigated. The article also addresses accusations of racism in Krog’s work. A partial answer to the persistent question of why Krog is so determinedly focused on ‘race’ is sought in the concept of complicity. There is definite specificity in the way Krog writes about ‘white’ perpetrators and ‘black’ victims in South Africa, but her trilogy should be read within the broader context of international restitution discourses, allowing for a somewhat different perspective on her contribution to the discussion of the issue of whether ‘white’ people belong in (South) Africa.

Part IV Independent Constitutional Institutions, 16 Separation of Powers and the Position of the Public Prosecutor in Francophone Africa

2016 ◽  
Author(s):  
Adjolohoun Horace ◽  
Fombad Charles M
Keyword(s):  
Separation Of Powers ◽  
Public Prosecutor ◽  
Constitutional Democracy ◽  
Francophone Africa ◽  
The Public ◽  
Administration Of Justice ◽  
Institutional Status ◽  
Relationship Of ◽  
The Relationship

This chapter examines the role of public prosecutors in Francophone Africa. Most of Francophone Africa inherited and has maintained the French civil law tradition which confers on the public prosecutor constitutional and institutional status of dependence on, and limited independence from, the executive and judiciary. It is a delicate balance which tilted more in favour of dependence than independence before the 1990s, during the long era of dictatorship that followed independence. The chapter discusses the historical origins of the public prosecutor in France and its adoption in Francophone Africa; the functions of the public prosecutor and his status vis-à-vis the other branches of government. It points out that the relationship of dependence on the executive and judiciary has largely remained unchanged and poses challenges not only to the good administration of justice but also the entrenchment of a culture of constitutional democracy. A number of reforms are suggested.

scholarly journals The courtroom as TV studio: the case of the Oscar Pistorius trial

2018 ◽  
Vol 14 (4) ◽  
pp. 493-503
Author(s):  
Dikgang Moseneke
Keyword(s):  
South Africa ◽  
Social Media ◽  
Justice System ◽  
Television Channel ◽  
Media Report ◽  
The Public ◽  
Media Attention ◽  
The Media ◽  
Court Proceedings

AbstractIn 2014, something happened that changed how the media report on court proceedings in South Africa. The Oscar Pistorius trial proceedings attracted much media attention. International journalists flocked into South Africa in droves. Our newspapers, our televisions, our radios, even our Facebook feeds were flooded with information. An entire twenty-four-hour television channel was created with the sole purpose of televising, and then discussing, the proceedings. Everything about the trial – the judge's rulings, the witnesses who gave evidence and especially the verdict – clogged social-media newsfeeds on laptops and other devices for months on end. This has changed irreversibly the manner in which the media and the justice system in South Africa converge. Through a focus on the debates in and out of the courtroom that the Pistorius trial generated, this paper explores the intersection between the judicial function, the media and the public. It was an important moment in post-apartheid South Africa, ushering in a new way of making and distributing judicial images to the public and thereby bringing into being new ways for the media and the public to access and assess the adjudicative role of judges.

Embodying The Meaning Of The Guardian Of The Constitution In The Role Of The Constitutional Court Of Reducing Constitutions Indicated By Policy Corruption

2021 ◽  
Vol 2 (3) ◽  
pp. 592-599
Author(s):  
Suharno Suharno ◽  
Amir Junaidi ◽  
Muhammad Aziz Zaelani
Keyword(s):  
A Priori ◽  
Preventive Measure ◽  
Comparative Approach ◽  
Constitutional Court ◽  
State Institutions ◽  
The Public ◽  
The Media ◽  
The Guardian ◽  
The Impact

Purpose of this study was to answer two problems: (i) how is the guardian of the constitution embodied through the function of the Constitutional Court; and (ii) how the Constitutional Court as the guardian of the constitution reduces constitutions that are indicated by the policy corruption. Policy corruption is an invisible and covert element that able to threaten the synergy of the legal system and the public interest. The form of policy corruption is realized in the form of a law. Efforts that can be made to reduce the policy corruption are to implement the tight control over the media, which in this case is relevant to the function of the Constitutional Court. This studywas classified as doctrinal research with primary and secondary legal materials. Comparative approach and case approach were used to answer the legal issues. The results showed that: First, the guardian of the constitution through the function of the Constitutional Court through the optimization of the Constitutional Court Judges as the agent of constitution, strengthening the execution of the Constitutional Court decisions and collaborative steps with other state institutions in enforcing the constitutional guardianship. Second, the Constitutional Court as the guardian of the constitution in reducing laws indicated by the policy corruption is manifested in the form of a Constitutional Court decision that can be retroactive to recover the impact of legal losses that are indicated by the policy corruption, the decision of Constitutional Courtis justified by ultra vires to anticipate the chain of constitutions that indications of policy corruption, the decision of Constitutional Courtis strengthened in terms of its execution and the Court can examine or test the Constitution Drafting (bill/ RUU) (a priori review) as a preventive measure to prevent the enactment of laws that indicate policy corruption.

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