Summary Of Study Unit 3 - Transformative Constitutionalism

**Study Unit 3** **Transformative Constitutionalism** **Study Unit 3.1** **Apartheid History** **The character of the South African state before the advent of democracy in 1994** \- Pre-democracy South African state brutality due to Parliament\'s racist laws. **Apartheid isn't only a post-1948...

**Study Unit 3** **Transformative Constitutionalism** **Study Unit 3.1** **Apartheid History** **The character of the South African state before the advent of democracy in 1994** \- Pre-democracy South African state brutality due to Parliament\'s racist laws. **Apartheid isn't only a post-1948 concept** \- Already in the Early Cape segregation measures were introduced. \- Dutch and English influenced segregation in Boer Republics, Natal. \- After the Union of 1910, the idea of segregation based on race continued and were introduced by the English. \- The Nationalist government came into power in 1948. - There was a significant increase in the number of laws pertaining to race. \- These laws, amongst others, focused on: - Land segregation: - Black people were not allowed to own land. - The Black Land Act of 1913 dispossessed Black people of their land. - People must return to their ancestral land. - Homeland system provided for "independent homelands" and "self-governing states", allowing Black people so-called self-governance in specific areas in South Africa. - Led to many court cases and strife amongst communities. - Allowed government to move people from one area to another, against their will. - Segregating and categorizing communities by race. - Group Areas Act enforces segregation, creating separate areas for racial groups. - Your "race classification" allowed you to stay in a specific area only. - Restricting resources for non-White groups, requiring passes for movement. - Segregate courts for Black people, used to enforce apartheid. - Colonial era violence against vulnerable groups. - The post 1913 era is also famous for anti-government protests - Formation of political parties including ANC, PAC, and more. **Legacy of apartheid** \- Since 1984 a process has been instituted to abolish some of the apartheid measures. \- Conservative parties halt reform measures. \- Post-1991 several measures were taken to commence reform: -. Apartheid abolished in 1984-1990 of so-called mini apartheid - Legislation allowed Black individuals to access amenities, mixed marriages, and own property in urban areas. - De Klerk unbanned political parties and released Mandela in 1991. - The Abolition of Racially Based Measures Act repealed all racially based measures in 1991. - Land claims settled before 1994 Constitution enactment under the Act. \- Legacy of all the apartheid measures still pervades into present day life in terms of: - Land and settlement patterns. - Access to natural resources. - Access to justice. - People in extreme poverty lack social justice. **Developments after 1910** \- Africans lost land, ceased tribal living by 1910 Union. \- 1906 riots Natal, Zululand against pass laws, forced labour. - Zulu leaders imprisoned during riots. \- An Act prohibiting blacks to strike was accepted in 1911. - The mining authorities preferred black labour -- cheap and could not strike. \- 1917: Kadali founded Industrial and Commercial Union. - 24 mineworkers were killed. - Native Affairs Commission was appointed to serve as a permanent forum. \- By 1920 nothing had been done to better the position of black workers. \- In 1926, Act was adopted to exclude black workers from schooled and semi-schooled labour. \- The Defence Act of 1912 regulated that the army may only consist of whites. \- Blacks restricted to owning land in specific areas in 1913. \- After South African War White farmers left after war, replaced by black farmers. - Whites protested black control of land. - Purpose of Act introduction - People forced to travel and live in unfamiliar places. - Serious loss of life and livestock. - Black protest increased and the ANC was established by Sol Plaatje in 1912. - Jabavu's South African Races Congress was more moderate. - ANC protests prevented 1913 Act enforcement in Cape, securing black rights. **In 1931** \- women were allowed to vote for the first time. \- Only white women. \- Purpose was not to allow women more rights but to restrict the black vote. \- In 1936 black voters were scrapped from the voter's roll. **1948 Malan gained power** \- Legislation dealing with segregation and apartheid increased. \- Marriages between d3ifferent races were forbidden in 1949. - 300 marriages registered, mostly by Afrikaners. **1950:** \- Group Areas Act - racial segregation in urban areas. \- Apartheid laws: Population Registration Act, mixed marriage ban, pass laws. \- Apartheid applied at micro, meso-, and macro levels based on racial segregation. - Macro-segregation tool for peaceful coexistence, signalling potential for equal development. - Geographical and ethnic division had to be accomplished. - Pretoria was "cultural re-awakening" and the development of traditional structures. - Rural control by extending traditional authority. - State appointed and paid traditional leaders for rural control. \- Black education was regulated by an Act of 1953. - Verwoerd kept schooling low to ensure available unschooled labour. \- In 1959 the segregation policy dealing of education was made applicable to universities. \- Attempted removal of Coloured voters from 1951-1956 roll. \- 1950 act to suppress terrorism & riots **Between 1978 to 1989** \- Became apparent that the segregation idea had failed. \- The self-governing territories did not function well. \- More and more legislation was introduced to uphold the apartheid policy. \- The outside world reacted with more sanctions against South Africa. \- Reform attempts in 1986 abolished apartheid -- State of emergency since 1985 \- Legislation introduced measures that were foreign to both Roman-Dutch and English law - Form of "social engineering\". - South African parliament rejected English rule of law & Roman-Dutch principles. \- Courts allowed racial prejudice in policy since 1910 and might not have been ideal for parliament. \- SA law shapes social change, affects views on inequality indoctrination. - Gradual erosion of social values that led to inequality. \- Since the British took control at the Cape. - SA\'s social engineering lacks attempts to portray actions positively or alter events. - The stated intent was to change the social way of life. **1991-1993** \- On 2 February 1991 FW de Klerk lifted ban on political organisations, Nelson Mandela released. \- Start of irreversible process to improve justice in South Africa. \- Government, ANC and political parties negotiate new Constitution. - Constitution of 1993 broke deadlock to write South Africa\'s democratic Constitution. \- Democratic elections occurred in 1994 -- Resulted in second Constitution-writing process. \- Both these Constitutions are based on fundamental rights and democratic principles. \- Provision was also made for division of power in 1994. \- Since 1991 various Acts have been issued to try to abolish the racially based legal system. - The Abolition of Racially Based Land Measures Act repealed racially based land measures. - The Land Acts of 1913 and 1936, and the Group Areas Act, were repealed. - Although the main Acts were repealed, subordinate legislation continued to exist. - Existing laws still relevant, new regulations not enacted, rights protected. **1994+** \- The final Constitution of, 1996 was written in the period 1994 to 1996. \- Constitution has similarities, but key differences. - The Constitution doesn't provide for a government of national unity. - Reformulated fundamental rights for clarity. \- Since 1993 Constitution, there were controversial rulings by Constitutional Court. \- New laws cover education, police, land, environment. - Legislation reflects new Constitution. - Apartheid-era laws repealed; racial references removed from amended Acts. \- Protection for farm workers and labour tenants\' rights. - Court established to address land claims since 1913. - Youth, Human Rights, and Equality Commissions appointed. \- The period will be remembered as the time of the Truth and Reconciliation Commission - Violators may get amnesty. \- Shifted from law as social engineering to prioritizing fundamental rights. \- The Bill of Rights is where all other law must be measured and interpreted. **Questions** 1 Why shouldn't we forget the past? \- Those who forget the past are doomed to repeat it. \- We need to know about the past to establish a culture of respect for human rights. 2 Which legislation was introduced over the years to give effect to the different government's ideas of racial segregation \- The Land Act 1913 \- Prohibition of Mixed Marriages Act 1949 \- Population Registration Act 1950 \- Group Areas Act 1950 \- Suppression of Communism Act 1950 \- Bantu Education Act 1953 \- Extension of University Education Act 1959 **Study Unit 3.2** **History and Emergence of the Constitution through democratic transition.** **External resistance** \- Opposition to the Apartheid system outside South Africa include, but are not limited to: - International opposition from the United Nations. - Opposition from British Commonwealth. - Economic sanctions - Sporting boycotts. **Internal resistance** \- Important internal resistance elements/events include, but are not limited to: - Adoption of the Freedom Charter. - Women's march against the Pass Law in 1956. - Sharpeville Massacre of 1960. - Umkhonto seSizwe (MK). - The student uprising in Soweto in 1976. - Breakaway of the Pan Africanist Congress (PAC) from the ANC in 1959. **The period of negotiations -- A compromise for the transition to democracy** \- People realized 1980\'s conflict could lead to disaster. \- Confidential ANC and NP discussions started in 1980. \- FW de Klerk was president in 1989 -- New progress in secret negotiations with Nelson Mandela. \- ANC, PAC unbanned and Mandela and leaders freed in February 1990. \- ANC, PAC leaders returned to SA for negotiations. \- Political parties had varied opinions during negotiation for democracy. \- Important events/processes that took place include: - Convention for a Democratic South Africa (CODESA) convened. - Boipatong Massacre. - CODESA replaced by the Multi-Party Negotiating Forum (MPNF). - The Apartheid Parliament adopted the interim Constitution on 18 November 1993. - The 1994 democratic election. - The adoption of the final 1996 Constitution **South African Constitution of 1996** \- Key step in South Africa\'s democratization: Constitution negotiated, finalized, accepted. \- Has a Preamble, 14 chapters and a few schedules. \- Section 2 provides that the Constitution is the supreme law, and any law or conduct inconsistent with it, is invalid and that the obligations must be fulfilled. \- Chapter 2 of the Constitution contains the Bill of Rights. - A manner to give effect to the transformative vision of the Constitution. **Questions** 1 What was the Freedom Chapter? \- Large sections of SA citizenry oppressed by the apartheid regime, formulated in the format of a charter of rights with a strong emphasis on non-racialism. \- The ANC helped to engineer the drafting and adoption of the Freedom Charter with the assistance of other opponents including the SACP, the National Indian Congress and others. \- One of the founding documents of the human rights culture which later found expression in the Bill of Rights contained in South Africa's 1996 Constitution. 2 Extracts from the Freedom Charter: \- The People Shall Govern! - Universal suffrage for voting and candidacy in lawmaking bodies. - Everyone has the right to participate in governance - The rights of the people shall be the same. \- The People Shall Share in the Country9s Wealth! - National wealth of country shall be restored to the people. - Public ownership of mineral wealth, banks, monopoly industry. \- The Land Shall Be Shared Among Those Who Work It! - End of racial land ownership; redistribution to end hunger. - Government aids farmers with tools, seeds, tractors, dams. - Freedom of movement is guaranteed. - All shall have the right to occupy land wherever they choose. - No more cattle theft or forced labour. \- All Shall Be Equal Before the Law! - No-one shall be imprisoned, deported or restricted without fair trial. - No-one shall be condemned by the order of any Government official. - The courts shall be representative of all the people. \- All Shall Enjoy Equal Human Rights! - Law guarantees rights to speak, organize, meet, publish, preach, worship, educate. - The privacy of the house from police raids shall be protected by law. \- There Shall Be Houses, Security and Comfort! - Choose where to live, decent housing, family comfort. - Utilize surplus housing. - Reduce rent, lower prices, abundant food. - A preventative health scheme shall be run by the State. - Free medical care for mothers and children. 3 What was the central theme of the United Nations Resolution 765? \- ANC suspends talks after 46 killed in Boipatong massacre. \- Call for South Africa to stop violence and prosecute shooters. 4 What are the three central values of the post-apartheid regime in the interim Constitution? \- Establish new order for equal South African citizenship in democratic state. \- South Africa\'s representatives must adopt new Constitution per Constitutional Principles pact. \- Constitutional Assembly reforms governance, promotes national unity, and drafts Constitution. 5 Why did the Constitutional Court not certify the text of the Interim Constitution? \- Include all 34 Constitutional Principles. 6 The Supremacy of the Constitution \- The supreme law of the Republic. \- Invalid conduct, obligations must be met. **Study Unit 3.3** **The transformative nature of the Constitution and its implications** **The nature of the 1996 Constitution** \- Section 1 -- SA Constitution creates sovereign democratic state based on equality, dignity. \- Parliamentary sovereignty has been replaced by constitutional sovereignty. \- Constitution is the supreme law of the country. \- Unconstitutional laws or actions are invalid. \- Chapter 2: Bill of Rights includes civil, political, social, and economic rights. \- Bill of Rights requires state to respect, protect, promote rights. \- Capturing the unique nature of the Constitution: - Response to South Africa\'s history injustice. - Seen as transformative Constitution: - A document committed to social, political, legal and economic transformation. **The transformative nature of the Constitution with reference to the Bill of Rights** \- Transformative Constitution manifests with reference to several unique characteristics - Social, caring, redistributive, positive, multicultural. \- Historical self-consciousness: - Constitutional provisions evolve. - Interpret and adapt to society\'s changing needs. \- Social rights: - Socio-economic -- right to housing and healthcare. - Creates a new society in which people have social resources to exercise rights - Section 26: The Right to Housing - Section 27: The Right to Health Care, food, water and social security. \- Substantive and redistributive concept of equality: - The Constitution is committed to the achievement of substantive equality. - Section 9: The Right to Equality. - Section 25: The Right to Property. \- Affirmative state duties: - The Bill of Rights restricts government and mandates state action to aid social welfare. - Section 7(2): Bill of Rights subject to limitations in section 36. - Section 26 - Section 27 - Section 28: Children's Rights \- Horizontal relationship: - Bill of Rights limits state power binds individuals and institutions. - Section 8(2) -- Binds person based on right and duty nature. - Section 39(2) -- Courts must uphold Bill of Rights spirit in interpreting laws. \- Multiculturalism: - Constitution upholds gender justice, language diversity, cultural respect and framework of ubuntu. - Section 9(3) -- State cannot discriminate based on race, gender, sex, pregnancy. - Section 30: Language and Culture. - Section 31: Cultural, religious and linguistic communities. **Part 1 (1853-1900):** \- South Africa\'s predecessor, now Republic. - It came into being on 31 May 1910 with the four previously separate colonies: - The Cape, Natal, Transvaal and Orange River colonies. - Former territories of Boer republics in South Africa and Orange Free State. - Franchise based on property, education in Cape, Natal. **Part 2 (1900-1993):** \- SA Union formed from four British colonies 1910. \- In the South Africa Union Act negotiations, Cape Prime Minister pushed for nationwide multiracial franchise. - South Africa Act allowed Cape Province to maintain limited traditional franchise based on qualifications. - Cape allowed coloureds and blacks to vote. - Parliament controls voting qualifications Part 3 (1993 +): \- All South Africans over 18, regardless of race or gender, can vote. \- 1996 Constitution: called for a common voter\'s roll, regular elections, multi-party democracy.