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- Volume 26, Issue 1, 2010
South African Journal on Human Rights - Volume 26, Issue 1, 2010
Volume 26, Issue 1, 2010
Constitution-making as a learning process : Andrew Arato's model of post-sovereign constitution-making : editor's introductionSource: South African Journal on Human Rights 26, pp 1 –18 (2010)More Less
In May 2009 the Law School of the University of Glasgow held a Workshop on Constitution-Making. The decision to hold the workshop issued from correspondence between Andrew Arato and me about his positive assessment of the South African constitution-making process as the perfection of the new two-staged method of constitution-making which he characterises with two key terms: 'post sovereign constitution-making' and 'constitution-making as a learning process'. The correspondence between us focused mainly on critical concerns that I raised in response to Arato's positive assessment of the South African constitution-making process.
Source: South African Journal on Human Rights 26, pp 19 –44 (2010)More Less
This article reconstructs a model of 'post-sovereign constitution-making', namely, a multi-stage, democratic model with round table or multi-party negotiations as its centre piece, involving two constitutions with free elections in between, and overall enforcement through a Constitutional Court. This is the model that was more or less perfected in South Africa in the 1990s. In comparison, Hungary, the empirical object of the study, is seen as an imperfect realisation, because the final stage, not provided for in the interim Constitution, was not completed in a democratic process. The author thus sees the role of the Hungarian Constitutional Court as compensatory, and inevitably weakening, given the weak legitimating background provided by an incomplete process. A case in point is the jurisprudence of constitutional amendments. In light of the inherited amendment rule, the Constitution of the regime change could only be reliably protected if the Hungarian Constitutional Court adopted one or another version of amendment review, in the path of the Indian 'basic structure' doctrine. The article tries to show that a four-fifths rule concerning constitutional replacement, adopted during an unsuccessful effort at constitution-making, could be a textual support for such a review. Subsequent to the conclusion of this research, the new right-wing Hungarian Parliament abolished the four-fifths rule, by using the two-thirds amending rule. This, in the author's view, is prima facie unconstitutional.
Liberal democracy : the unintended consequence. South African constitution-writing propelled by the winds of globalisationAuthor Francois VenterSource: South African Journal on Human Rights 26, pp 45 –65 (2010)More Less
Is the apparent deterioration of South African constitutionalism to be ascribed to the manner in which the Constitution was written? To understand and evaluate the acclaimed process of producing the equally applauded Constitution requires insight into the history and attitudes of the main role-players in the constitution-writing process. The role of technical advisors and visionary political leaders needs to be recognised, and the global context in which the constitutions were written must be understood, in order to explain the unlikely conversion of the country to liberal democracy in 1993. The 15 years of unfettered constitutional jurisprudence of the Constitutional Court has established a benchmark against which future growth or decline of constitutionalism may be measured. There are, however, disturbing signs pointing towards the decline of constitutionalism in a South Africa which is governed and administered by authorities who seem to have failed to internalise the precepts of the constitutional state. Some indicators useful for monitoring progress towards constitutional maturity or decline are proposed.
Instituting public freedom or extinguishing constituent power? Reflections on South Africa's constitution-making experimentAuthor Henk BothaSource: South African Journal on Human Rights 26, pp 66 –84 (2010)More Less
This article juxtaposes two interpretations of South Africa's constitution-making process. The first is critical of the process's emphasis on legal continuity, its fragmentation of popular sovereignty and its reduction of constituent to constituted power. The second, by contrast, holds that public freedom was instituted precisely by splintering sovereignty, by undermining the supposed unity and identity of 'the people', by affirming plurality, and by subjecting all power (including the power of the Constitutional Assembly) to the demand for justification. By interrogating the different notions of collective selfhood and sovereignty informing these interpretations, the article starts to explore the link between the founding of the Constitution and the possibility - and limits - of a constitutional politics aimed at the ongoing transformation of social relations of inequality and subordination.
Author Dennis DavisSource: South African Journal on Human Rights 26, pp 85 –101 (2010)More Less
The Constitution promised a form of social democracy built upon a transformed legal system. While transformation cannot be equated with revolution and hence the complete eradication of existing legal norms and concepts, the constitutional text promised the development of the existing legal system into a body of law which would, as coherently as possible, reflect the core values of the Constitution. This article examines the law of contract, socio economic rights and identity politics in order to evaluate the progress made during the first fifteen years of constitutional democracy. It concludes that, notwithstanding a legal text that sought expressly to guide legal development, the courts have brought about change more at the margin than in the reconstitution of the entire legal system. In particular, the influence of legal culture is found to be a key explanation for this halting jurisprudential progress.
Vertical sovereignty, horizontal constitutionalism, subterranean capitalism : a case of competing rertroactivitiesSource: South African Journal on Human Rights 26, pp 102 –129 (2010)More Less
This article engages with Andrew Arato's post-sovereign model of constitution-making. It does so with specific reference to Arato's claim that the South African constitution-making process constituted a 'perfection' of the post-sovereign model. It investigates this claim against the background of sceptical perspectives on the South African constitution-making process, especially those perspectives that view the South African transition and constitution-making process as more an outcome of a deal between the Apartheid Business Elite and the ANC leadership than of the round table negotiations that Arato takes as the heart of the post-sovereign process. The article ultimately defends Arato's claim with recourse to a Kelsenian contention which takes the impure origins of all law for granted, and recognises the need to fictionalise or presuppose pure foundations for the sake of entertaining the possibility of new law, and law as such.
Source: South African Journal on Human Rights 26, pp 130 –140 (2010)More Less
I am incredibly grateful to the organisers, and to the University of the Witwatersrand (Wits) School of Law for having hosted the exciting Workshop on Constitution-Making as a Learning Process? from 4 to 7 August 2010 and for the Bram Fischer Fellowship granted to me for the month of August. The workshop and the time in South Africa gave me the opportunity to meet and to repeatedly address a distinguished group of lawyers and scholars. I was particularly pleased to meet activists who were closely involved with a political transition that I consider exemplary and would like to refer to as South Africa's negotiated 'post-sovereign' constitution-making process.
Author Ann SkeltonSource: South African Journal on Human Rights 26, pp 141 –163 (2010)More Less
This article explores girls' socio-economic rights fulfilment in South Africa. After setting out the international law context, the article turns to the lived reality of girls in this country through an examination of their rights to healthcare services, nutrition, social services and security, and shelter. The research indicates that whilst girls are babies and young children they enjoy relatively equal access with their male counterparts to socio-economic services made available to children by the state. However, during pre-puberty and adolescence girls face barriers in accessing their socio-economic rights. The challenges are linked to girls' biological and economic vulnerability, the relationships of power and difficulties in the negotiation of sexual relationships, lack of access to reproductive health rights, and the expectations of girls being caregivers. The article concludes with a consideration of how solutions might be developed, together with girls, to assist them in the achievement of their socio-economic rights. It further recognises that girls belong to the broader groups of both women and children, and that solutions should reflect a relational approach to rights.
Author Kevin IlesSource: South African Journal on Human Rights 26, pp 164 –171 (2010)More Less
Brümmer v Minister for Social Development and Others concerned the constitutionality of a time-bar provision in the Promotion of Access to Information Act 2 of 2000. The offending provision, s 78(2), required applications in terms of s 82 of the Act challenging an unsuccessful application for information to be brought to court within 30 days. The Constitutional Court, in a unanimous judgment, found the section unconstitutional. But that is not the subject of this note. Of concern is a passage in the unanimous judgment which, although obiter dictum, occupies three paragraphs and criticises both the applicant's framing of the relief sought and the High Court's approach to applicant's prayers. The dictum imposes a false election on constitutional litigants, which may have far-reaching consequences.
Courting Social Justice : Judicial Enforcement of Social and Economic Rights in the Developing World, Varun Gauri and Daniel Brinks (Eds.) : book reviewAuthor Jackie DugardSource: South African Journal on Human Rights 26, pp 172 –174 (2010)More Less
Courting Social Justice, edited by Varun Gauri and Daniel Brinks, is a great contribution to the growing scholarship on the comparative adjudication of socio-economic rights. It offers an empirical analysis of the role of courts in implementing health and education rights in five countries: South Africa (chapter 2, by Jonathan Berger), Brazil (chapter 3, by Florian Hoffmann and Fernando Bentes), India (chapter 4, by Shylashri Shankar and Pratap Mehta), Nigeria (chapter 5, by Chidi Odinkalu), and Indonesia (chapter 6, by Bivitri Susanti). It also provides an analysis of the horizontal application of socioeconomic rights obligations to private entities (chapter 7, by Helen Hershkoff).
Author Tumai MuromboSource: South African Journal on Human Rights 26, pp 174 –178 (2010)More Less
This publication represents a unique achievement for the editor and the contributing authors who are drawn from a wide spectrum both in terms of the geographic representation and professional experience. Seldom has a group of distinguished legal scholars and social scientists thought of analysing the transnational nature of environmental justice issues, the similarities of the problems encountered in different jurisdictions, and more importantly the role that law, in particular, access to justice can play in providing remedies for people facing environmental injustice.