This account will contend that the rule of law in South Africa is more than a relic of colonialism. The thrust of this argument is that post-colonial constitutions intentionally and necessarily reconceptualize the role of the rule of law. As such, the post-colonial rule of law assumes a different character and effect than that which it had under colonial rule.
In substantiation, I will first consider the rule of law during apartheid South Africa. This consideration will reveal that the rule of law was compromised under parliamentary sovereignty. Then, to demonstrate the difference of the post-colonial perspective on the rule of law, I will assess South Africa’s effort to reconceptualize the legal principle in the post-apartheid dispensation. This portion of the essay will contrast liberal post-apartheid constitutionalism and transformative constitutionalism. In doing so, I will hold that the former is more persuasive and appropriate in the South African context and democratic constitutionalism.
Legality in the Colony
During apartheid, the legislature enjoyed supremacy above the executive and judiciary. Parliament, as the sovereign legal authority, could create and abolish any law concerning any issue. Legislation passed by parliament could not be invalidated by the courts. The judiciary simply did not have the jurisdiction to challenge legislation. This allowed the racially discriminatory apartheid laws to go unchecked because the legislature governed with absolute discretion. In this way, the governance structure of the apartheid regime severely compromised the principle of the rule of law. Consequently, parliamentary sovereignty grossly undermined justice.
On the other hand, constitutionalism attempts to avert arbitrary government such as exercised by the apartheid regime. Constitutionalism proposes government by the constitution. Thus, constitutionalism, as an instrument to curb arbitrary government, aligns with the inner morality of law[1]. According to this understanding, laws must be (inter alia) publicly promulgated, clear, and equally enforced.
Additionally, the function of democracy in constitutionalism is key. Democracy legitimises constitutional rule because the legislature is constituted by democratically elected representatives of the voting populace. The duly elected parliament represents the diverse interests, experiences, and ambitions of a variety of constituencies. As such, the laws passed by an elected legislature are a reflection (albeit imperfect) of the needs, values and will of the people. Therefore, constitutionalism in a democratic framework not only facilitates but also protects the notion of popular self-government.
Democratic constitutionalism then, relies heavily on the rule of law. This ‘rule’ refers to the principle that no person or institution is above the law. In a democracy, this principle is paramount.
Post-apartheid Constitutionalism
The rule of law in terms of the post-apartheid constitutions is more than a legacy of colonialism. In this, I agree with Upendra Baxi[2]. Colonialism is part of the history of the rule of law in former colonies and thus influences post-colonial constitutions. However, it is also more complex than that. Post-apartheid constitutions are responsive documents. They are unapologetically written as tools for the achievement of a desired end. This end is typically informed by several factors, including the country’s socio-political history as a colony, its current reality, its vision for the future, and place among the global community of nations.
In South Africa the rule of law is a crucial founding tenet of the Republic. It is provided for in the very first section of the Constitution – s1(c). The authors of the Constitution placed the rule of law among important founding values including human dignity s1(a), non-racialism s1(b), and constitutional supremacy s1(c). The provision entrenching the rule of law appears immediately alongside constitutional sovereignty. It is no coincidence that the principle of legality enjoys a prominent position. Not only does this indicate the lawmakers’ esteemed view of the principle of the rule of law and its centrality in characterising the Republic. It also communicates a clear intention to bind South Africa to this principle fundamentally.
The primacy of the rule of law in the Constitution is perspicuous and uncontroversial. The rule of law as adumbrated in the Constitution is part of the very definition of South Africa. For this reason, understanding the prevailing judicial perception of the rule of law is paramount. It informs the application and operation of the principle of the rule of law in post-apartheid South African courts. Here, the main contending conceptions of the rule of law in South Africa are transformative constitutionalism, and liberal post-apartheid constitutionalism.
Considering the Postcolonial Conflict
The rule of law as envisaged by the drafters of the Constitution differs radically from that of the preceding founding national documents (of 1909, 1961, 1983) in conception and application. The rule of law under Apartheid was used to meet the political ends of the totalitarian regime. The sovereign legislature of the time weaponised the rule of law by passing overtly racist legislation. This discriminatory legislation was potent because the judiciary was 1) not able to challenge policy and declare legislation invalid, and 2) able to use the rule of law as a makeshift shield to avoid deliberating on the substance and validity of apartheid legislation. Rather than conscientiously adjudicatory, the role of the judiciary was administrative. Judges were discouraged from independent adjudication. Under parliamentary sovereignty, the court could not declare laws to be invalid. All laws validly passed by parliament were enforceable. Thus, judges were able to cite the principle of the rule of law in adjudication to uphold and enforce apartheid legislation.
A full procedural revolution is described as involving the rejection and removal of an established government and the successful establishment of a new order. This traditional conception of a revolution requires the use of extra-constitutional means to revolt against the establishment. In this way, a ‘legal revolution’ is a contradiction in terms. As a founding provision of the Republic in the Constitution, the rule of law is not extra-constitutional. Inherently, it is not revolutionary arsenal. The rule of law alone as contemplated in the Constitution does not facilitate revolt and cannot revolutionise South Africa.
Moreover, this is preferrable. Not only is the rule of law, as a legal principle, technically unable to revolutionise South Africa. It is also best that it cannot, and indeed does not, overthrow the South African order. South Africa [needs] reform rather than revolution. The country is a young post-colonial democracy and is susceptible to the pitfalls similarly faced by countries which emerge as democratic post-colonies. The challenges faced by India’s post-colonial constitutionality and cited by Baxi are but one example. Judicial constraints are crucial in post-colonies. To avoid the abuse of power in an already vulnerable society, South Africa’s approach to the principle of legality ought to rely more on time-tested structures and processes rather than intervention. Thus, the prudence of liberal-conservative post-apartheid constitutionalism is more appropriate.
Post-apartheid constitutionalism requires prudence, not despite South Africa’s history but because of it. We ought to be prudent and ‘constrained’ particularly considering previous abuses of the law and judicial power in South Africa. The ‘constrained vision’[3] contemplated by economist and social theorist Dr Thomas Sowell refers broadly to a view of the world which is guided by the principle of prudence, and belief in checks and balances.
The constrained vision is reflected in South Africa’s legal culture as liberal-conservative post-apartheid constitutionalism. This liberal-conservative view is often misconstrued as ineffective, archaic, and inflexible. This is an inaccurate representation of liberal-conservatism. The liberal-conservative constitutionalist is not opposed to change, or conscientious adjudication.
Instead, the liberal-conservative constitutionalist is guided by the principles of precedence and prescription. He believes, as Burke did, that “the individual is foolish, the species is wise.” As such, the liberal-conservative constitutionalist adheres to custom, convention, and continuity. He understands that permanence and change are equally crucial to the development of South Africa’s postcolonial constitutional democracy. Thus, both permanence and change must be acknowledged and reconciled in a vibrant society[4].
The ‘unconstrained vision’[5] is reflected in South Africa as transformative constitutionalism. Although transformative constitutionalism is characteristically amorphous, it is broadly predicated on the vision espoused in the epilogue of the Interim Constitution[6]. This vision imagines a new South African society based on substantive equality. Transformative constitutionalism, then, is an outcomes-based approach. It is concerned with transformation which has been described by former Chief Justice Pius Langa as “a social and economic revolution”. This consequentialist application of the Constitution fundamentally seeks ‘transformative’ ends and substantive equality[7] – also referred to as ‘equality of outcome’.
Notably, the post-apartheid legal order must be based on persuasion, rather than coercion. To this end, South Africa’s post-apartheid legal culture has gradually become a culture of judicial justification. A culture of judicial justification refers to the notion that legitimate leadership and governance is assessed through the merit of the case argued in defence of its pronouncements. On the other hand, the culture of judicial authority during the apartheid era legitimated leadership through fear entrenched by the force of its command.
This compelling shift to judicial justification is most compatible with liberal-conservative constitutionalism rather than transformative constitutionalism. The liberal-conservative constitutionalist perceives the need for prudent restraints on power and human passions, regardless of good intentions. As such, he is beholden to a stricter standard of justification which maintains “a healthy tension between the claims of authority and the claims of liberty[8].”
On the other hand, transformative constitutionalism presents the counter-majoritarian dilemma. This dilemma refers to a tension caused by the influence which unelected judges have on the effect of legislation passed by a duly elected legislature. The dilemma is concerned with the extent to which judges play a role in ‘making law’. Although adjudication presents a legitimate and necessary opportunity to develop law and policy. The counter-majoritarian dilemma sees a potential redundancy in the democratic election of lawmakers where judges are also allowed the discretion to prescribe certain policy outcomes according to the interests of certain groups.
As mentioned earlier, transformative constitutionalism is a judicial approach which is primarily concerned with specific (transformative) outcomes of legislation. The ‘transformative’ and even ‘revolutionary’ adjudication contemplated by this view stands to undermine the democratic process as a legitimate expression of the will of the people. As Sowell argues, even judges are not immune to the influence of power and therefore cannot legitimately act as “surrogate decision-makers” in a society where the popular vote already elects representatives to make policy decisions. This exposes the potentially perilous nature of transformative constitutionalism in South Africa’s judiciary.
Instead, a liberal-conservative approach relies heavily on democratic constitutionalism in the legislature rather than transformative constitutionalism in the judiciary. It recognises that the two cannot coexist comfortably for long before grave tensions arise. This prudent approach does not only protect democracy by preferring constraints on judicial power. It is also concordant with the separation of powers, and the principle of the rule of law.
– Lele M
Bibliography
Baxi, Upendra. ‘Post-colonial Legality: A Postscript from India’. Warwick: Verfassung und Recht in Ubersee VRU 45, 2012.
Edwards, Pamela. ‘Permanence and Progression: The Statesman’s Science: History, Nature, and Law in the Political Thought of Samuel Taylor Coleridge. New York: Columbia University Press, 2004.
Kirk, Russell. ‘The Politics of Prudence’. Intercollegiate Studies Institute, 2014.
Langa, Pius. ‘Transformative Constitutionalism’. Stellenbosch: 17 Stellenbosch L. Rev 351, 2006.
Sowell, Thomas. ‘A Conflict of Visions: Ideological Origins of Political Struggles’. New York: W. Morrow, 1987.
[1] Developed by Lon Fuller
[2] U Baxi ‘Chapter 28: Postcolonial legality’ in H Schwarz and S Ray (eds) A companion to postcolonial studies
[3] The constrained (tragic) vision relies on the belief that human nature is essentially unchanging and that man is naturally inherently self-interested, regardless of the best intentions. Those with a constrained vision prefer the systematic processes of the rule of law and experience of tradition. Compromise is essential because there are no ideal solutions, only trade-offs.
[4] Pamela Edwards in ‘Permanence and Progression’
[5] The unconstrained (utopian) vision relies on the belief that human nature is essentially good. Those with an unconstrained vision distrust decentralized processes and are impatient with large institutions and systemic processes that constrain human action. They believe there is an ideal solution to every problem, and that compromise is never acceptable.
[6] “a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex”.
[7] Pius Langa in ‘Transformative Constitutionalism’
[8] Russell Kirk in ‘Politics of Prudence’
Lele Muthali 