African Studies Quarterly

The Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law. Penelope Andrews and Stephen Ellmann (eds.). Johannesburg: Witwatersrand University Press, 2001. 606 pp.


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Few constitutions in the world have generated as much interest and controversy as South Africa’s Interim and Final Constitutions. While it lasted, apartheid attained worldwide notoriety. Its anticlimactic ending was a momentous ‘end of history’ that generated global interest. With the end of apartheid, global attention shifted to the process of social engineering that would produce “a new South Africa,” a just and equitable society. Thus, the constitution making process and some provisions of the constitutions (such as the inclusion of socio-economic rights in the Bill of Rights) were no less harbingers of controversy. Expectedly, the Interim and Final constitutions, the processes, institutions, and innovative rights enshrined in them have generated extensive scholarly debate and spawned substantial literature. [1] But it would be misleading to think that apartheid alone stimulated and sustained the worldwide scholarly interest in South Africa’s constitution. The constitution’s groundbreaking Bill of Rights places it highly in the pantheon of superstar constitutions to the extent it is now widely regarded as “the most progressive Constitution in the world.” [2]

In many respects, this book is an important, welcome addition to the growing literature on South African constitutions. As an effort to assemble “a particularly wide and cross-cutting set of views” (p.2), the book indeed offers wide-ranging, distinctive perspectives. By no means the account of “strangers,” the book presents the reflections of politicians and academics, participants and keen observers. The authors include leaders of the negotiation process; those actively engaged in implementing the constitutions; and those variously involved with some of the institutions created by the constitutions. Thus, the book is largely the account of individuals whose efforts partly made the constitutions a reality or shaped (and perhaps still shaping) the institutional and normative regimes created by the constitutions.

Systematically divided into three parts, the book is a collection of twenty essays, including the excellent introductory chapter, which sets the tone for the rest of the book and admirably provides a detailed synopsis of the various chapters. The nine essays in the first part explore the constitution making process. It takes the reader through the difficult process of negotiation; highlighting in its stride the grand brinksmanship, horse-trading, and compromise leading to the agreements on the basic tenets of the constitutions. The first section ends with the account of that suspenseful period when the result of the negotiations was tabled for certification by the Constitutional Court with a historic mandate to determine the constitutionality of the constitution.   

The book explores some of the very important rights protected by the constitution. The second part (six essays) focuses on some of the key rights, including, the rights to citizenship, equality (especially of women), cultural freedom, free speech, and socioeconomic rights as well as the applicability of the Bill of Rights to private (non-state) actors. The essays in this part highlight the emerging challenges to make the hopes and promises of the constitution a sustainable reality. As one of the contributors, Penelope Andrews, underscored (p.348), simply enshrining rights in the Constitution does not automatically guarantee their enjoyment. Effective institutions are necessarily part of the equation.    

The need to understand the protective structures designed to safeguard the rights protected by the constitutions is the focus of the third part. The four essays examine some of the important institutions created by the constitutions; namely, the federal features of the final constitution, the role of the constitutional court, of the lower courts and of the police, and the structure and functions of the Human Rights Commission. In addition to the historical overview, the essays provide a reasoned evaluation of these institutions’ strengths and weaknesses and possible ways to strengthen them. Karthy Govender’s piece (p. 571) on the work of the Human Rights Commission shares the legalistic pedigree of the United Nations-driven dominant conception of an ideal National Human Rights Commission which has a rather limited vision due to its heavy reliance on the formal powers of these commissions. This otherwise excellent analysis could have benefited from an enlarged, more holistic vision based not only on what the commission can do, but also on what can be done with it by civil society groups. [3]     

Consistent with the editors’ hopes, the book refreshingly sheds light on “the genesis of the new rights culture” (p. 18) in South Africa. Being the firsthand account of those involved in the process or with the institutions makes it all the more authoritative. It offers scholars and researchers a rare insight into the minds of some of those major players. While the book makes a candid attempt to identify the problems and challenges facing the realization of the “new rights culture,” it shies away from taking up the challenge of interrogating the suitability of undue reliance on constitutional rights framework to transform the legacies of apartheid or to realize a just and equitable South Africa. Nor does it interrogate the double-edged nature of entrenched individual rights; to the extent some of these rights may work to preserve the fraudulent status quo of the apartheid legacy. [4] However, the contributors understand the nature of constitutions as more of a work-in-progress than divine rules etched in stone. The editors rightly expect future interventions to respond to problems or exigencies the framers of the constitutions did not foresee (p.18).   

One minor shortcoming of the book (not uncommon with most edited works) is that it is not arranged in numbered chapters. Instead of easy references to chapters, one is saddled with references to pages or titles where chapters would normally suffice. Nonetheless, the book remains a very important addition to the growing literature on South African constitutions. African and international human rights scholars, comparative constitutional law scholars and historians, political scientists, feminists, human rights advocates and researchers, and others interested in and intrigued by efforts to transform this former epitome of inhumanity into a just and equitable society for all its inhabitants, will find the book refreshingly valuable.  

Shedrack C. Agbakwa
York University, Toronto, Canada.


ENDNOTES

[1] See, e.g., G. E. Devenish, A Commentary on the South African Constitution. Durban: Butterworths, 1998.

[2] See Kristine Yigen, “Enforcing Social Justice: Economic and Social Rights in South Africa” International Journal of Human Rights 4, no.2, (2000) 13 at p. 21.

[3] See generally, Obiora C. Okafor & Shedrack C. Agbakwa, “On Legalism, Popular Agency and ‘Voices of Suffering’: The Nigerian National Human Rights Commission in Context” Human Rights Quarterly, 24, (2002), 662-720 (espousing the adoption of an enlarged, more holistic paradigm in assessing national human rights commissions to enhance their transformative potentials).

[4] On this see, Makau wa Mutua, Human Rights: A Political and Cultural Critique. Philadelphia: University of Pennsylvania Press, 2002, p. 128-130.