[Note: This is part I of a blog series on judicial globalization, in addition to the introduction]
Transformative Constitutionalism and the 1996 South African Constitution
South Africa’s adoption of its 1996 Constitution after the end of Apartheid led to the ushering of one of the most progressive constitutions in the world.[1] The Constitution, Act 108 of 1996, was signed into law by President Mandela on December 10, 1996.[2] The judicial systems as provided for in section 166 of the Constitution include the Constitutional Court; the Supreme Court of Appeals; the High Courts; the Magistrates’ Courts; and any other court established in terms of an Act of Parliament. According to section 167 of the Constitution, the Constitutional Court is the final arbiter in constitutional matters and has the power to decide the constitutionality of legislation and executive conduct.
One of the key objectives of the Constitution is the transformation of South African society.[3] Klare, who coined the concept ‘transformative constitutionalism,’ defines it as:[4]
A long-term project of constitutional enactment, interpretation, and enforcement committed (not in insolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law.
The elements of transformation include the “dismantling of a plethora of racist and sexist laws and institutions, redressing their legacy, healing the divisions of the past and building a new society committed to social justice and the improvement in the quality of people’s lives.”[5] Bunlender AJ wrote in Rates Action Group v City of Cape Town:[6]
Ours is a transformative constitution…. Whatever the position may be in the USA or other countries, that is not the purpose of our Constitution. Our Constitution provides a mandate, a framework and to some extent a blueprint for the transformation of our society from its racist and unequal past to a society in which all can live with dignity.
Its Bill of Rights chapter is a cornerstone of democracy in South Africa and serves as ‘post-liberal’ manifesto for a post-apartheid country.[7] It enshrines the rights of all people in the country and affirms the democratic values of human dignity, equality, and freedom.[8] It includes civil and political rights, as well as a comprehensive set of social, economic, and cultural rights all enforceable by the courts.[9] Section 7(2) of the Constitution further obligates all branches of government to respect, protect, promote and fulfill the rights in the Bill of Rights. According to Justice Emeritus Albie Sachs, the Bill of Rights serves “[a] democratic universalistic, caring and aspirationally egalitarian society that embraces everyone and accepts people for who they are.”[10]
The Bill of Rights is modeled on international, regional, and sub-regional human rights conventions. In terms of interpretation of the Bill of Rights, international and foreign laws serve as aid. Section 39 (1) of the 1996 Constitution declares that:
[w]hen interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
Within this context, it is important to differentiate between international law and foreign domestic law as the Constitution made a clear distinction. International law binds states based on the acceptance by specific states through becoming parties to treaties. Declarations and resolutions are considered soft law, and therefore non-binding. Other sources include relevant norms that have become a rule of customary law accepted as “general practice accepted as law;”[11] jus cogens (peremptory norms accepted and recognized by the community of states as a whole);[12] and obligations erga omnes (which are obligations owe to the international community as a whole). The International Court of Justice (ICJ) has accepted the right to self-determination[13] and protection from slavery and racial discrimination to constitute obligation erga omnes.[14] Dugard has described judicial reliance on international human rights as ‘common place’.[15]
Foreign law refers to the domestic law (such as legislation and case-law) of other States. The Constitution permits the consideration of foreign law. The drafters foresaw the importance of international law and the pivotal role that foreign sources would play in the development of its young jurisprudence. Hence, the specific provisions above dealing with this issue. The Constitutional Court relies freely on both international and foreign law sources and precedents.[16]
Application of International law
The Constitution ensures that South African laws are interpreted to comply with international law, particularly in the field of human rights. This is in conjunction with section 233 which states that “[w]hen interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.” This section requires courts to be guided by international norms in their interpretation of the constitution. Accordingly, the Constitutional Court has shown a willingness to be guided by international human rights law. In an early decision involving the constitutionality of the death penalty, the then President of the Constitutional Court made the following statement:[17]
In the context of s 35(1), public international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within the [the Bill of Rights] [which] can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the UN Committee on Human Rights, the Inter-American Commission on Human Rights, the European Commission on Human Rights, and the European Court of Human Rights and, in appropriate cases, reports of specialized agencies such as the International Labor Organization (ILO), may provide guidance as to the correct interpretation of particular provisions of [the Bill of Rights].
Some of the cases that the Court has invoked international law includes Ferreira v Levin NO,[18] where the Court turned to international jurisprudence for guidance on the meaning of ‘liberty’ and ‘security of person.’ In Christian Education South Africa v Minister of Education,[19] in which South Africa’s obligations under Convention Against Torture (CAT) and CRC were invoked to uphold the prohibition of corporal punishment. For Minister of Health v Treatment Action Campaign (No 2),[20] and Mazibuko v City of Johannesburg,[21] where the Court examined the concept of a ‘minimum core obligation.’
The Court has generally interpreted the term ‘international law’ to encompass both treaties and non-binding treaties. For instance, in addition to the CRC and the African Charter to which South Africa is a party, the Court can use treaties that it has signed but not ratified, as well as treaties that the country is not eligible such as the European Convention on Human Rights. They have on occasions considered non-binding soft law instruments such as declarations and General Comments of the U.N treaty bodies, and U.N reports on human rights matters. For example, in Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development,[22] the Constitutional Court relied on the Guidelines on Justice Matters involving Child Victims and Witnesses of Crime, elaborated by the UN Economic and Social Council and General Comment No 5 of the Committee on the Rights of the Child.
In S v Williams,[23] the Constitutional Court also found that corporal punishment was unconstitutional on the ground that it violated the Constitution’s prohibition of cruel, inhuman, or degrading treatment, or punishment. The Court arrived at this determination by examining the jurisprudence of the UN Human Rights Committee and the European Commission and Court on human rights after acknowledging that “[i]n common with many rights entrenched in the Constitution, the wording of the section conforms to a large extent with most international human rights instruments.”[24] From the above, it is evident that the Constitutional Court has adopted quite a liberal approach by also relying on non-binding instruments.
SHOULD INTERNATIONAL LAW BE AN IMPORTANT ASPECT OF THE INTERPRETATION OF RIGHTS DOMESTICALLY?
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[1] See, IAN CURRIE & JOHAN D. WAAL, THE BILL OF RIGHTS HANDBOOK (2013).
[2] JOHN DUGARD, INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE (2014).
[3] See Francois Venter, Local Government: Between Subsidiarity and Shortfalls in Service Delivery, in THE QUEST FOR CONSTITUTIONALISM: SOUTH AFRICA SINCE 1994 (Hugh Corder, Veronica Federico & Romano Orru, Eds., 2014).
[4] Karl Klare, Legal Culture and Transformative Constitutionalism, 14 SAJHR 146, 150 (1998).
[5] Sandra Liebenberg, South Africa: Adjudicating Social Rights under a Transformative Constitution, in SOCIAL JURISPRUDENCE: EMERGING TRENDS IN INTERNATIONAL AND COMPARATIVE LAW 76 (Malcolm Langford, Ed.,2008).
[6] 2004 (12) BCLR 1328 (C), para 100.
[7]Klare, supra note 4.
[8] See section 7 of the Constitution.
[9] See Sandra Liebenberg “South Africa: Adjudicating social rights under a transformative constitution” in Malcolm Langford (ed) Social Rights Jurisprudence: Emerging trends in international and comparative law (2008) 75.
[10] Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) SA 524 (CC) para 60.
[11] Article 38(1)(b) of the Statute of the International Court of Justice (ICJ).
[12] Vienna Convention on the Laws of Treaties (VCTL), article 53.
[13] East Timor case (Portugal v Australia) [1995] ICJ Rep 90.
[14] Barcelona Traction, Light and Power Co [1970] ICJ Rep 3, 32.
[15] DUGARD, supra note 2, at 338.
[16] See Jacob Foster, The Use of Foreign Law in Constitutional Interpretation: Lessons from South Africa 45 U.S.F.L. Rev. 79 (2011).
[17] S v Makwanyane 1995 (3) SA 391 (CC) at 413-14. para 35.
[18] Ferreira v Levin NO, 1996 (1) SA 984 (CC) at 1035-6, 1085.
[19] Christian Education South Africa v Minister of Education, 2000 94 SA 757 (CC).
[20] Minister of Health v Treatment Action Campaign (No 2), 2002 (5) SA 721 (CC).
[21] Mazibuko v City of Johannesburg, 2010 (4) SA 1 (CC).
[22] Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development 2009 (7) BCLR 637 (CC).
[23] 1995 (3) SA 632 (CC).
[24] Id, at para 21.
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