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Comparative Constitutional Law

Comparative Constitutional Law. Class 21 November 5, 2008 South Africa: Origins and Structure of its Constitutional System; the SA Constitutional Court. History of Apartheid. Nelson Mandela. Member of Thembu (Xhosa) royal family Became active in the ANC.

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Comparative Constitutional Law

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  1. Comparative Constitutional Law Class 21 November 5, 2008 South Africa: Origins and Structure of its Constitutional System; the SA Constitutional Court

  2. History of Apartheid

  3. Nelson Mandela • Member of Thembu (Xhosa) royal family • Became active in the ANC. • Acquitted in famous Treason Trial in 1961 • After ANC banned, Mandela went abroad to set up its guerilla wing, Umkhonto we Sizwe (MK) • 1961: SA leaves Commonwealth

  4. The road to imprisonment • Later Mandela went underground in SA • Caught in 1963 and sentenced to 5 years in prison for leaving country illegally • While in prison, other ANC leaders caught in Rivonia Raid and brought to Robben Island for 1964 Rivonia Trial. • He and other members of ANC High Command sentenced to life imprisonment for “sabotage,” then a capitol offense

  5. Robben Island • Political prisoners put to hard labor on chain gangs • Mandela never mistreated, but witnessed much abuse • By the early 1980s, foreign pressure mounting for the release the Mandela and other political prisoners • 1982 Mandela and 4 others moved to Pollsmoor Prison.

  6. 1970s and 1980s • Increasing international isolation for SA • UN resolutions of condemnation • Bans on sports teams • US, UK and 23 other nations enact trade sanctions by end of 1980s • 15-20% minority of whites vote for Progressive Party that opposes apartheid

  7. ANC-NP secret negotiations • In 1985 Minister of justice and prisons Kobie Coetsee was receptive to Mandela’s efforts to meet with him • They met in 11/1985 at a hospital where Mandela was recovering • Coetsee: “Some intuition told me I shouldn’t see Mr. Mandela behind bars.” • Secret meetings continued for 4 years. No real progress was made. • At this time: continuing violence, near constant states of emergency

  8. ANC-NP secret negotiations • 1988 Mandela moved to relatively luxurious house at Victor Verster prison • Mandela taken out on secret car trips to expose him to realities of outside world and prepare him for release.

  9. 1980s continuing escalation of violence • 1989 FW de Klerk becomes PM after Botha’s stroke. De Klerk former conservative NP member. • Government talks with ANC leaders: 1989-1990

  10. F.W. deKlerk: lifts ban on ANC, releases Mandela • On 2 February 1990, president F.W. deKlerk reversed the ban on the ANC and other anti-apartheir organizations. • Announced Mandela’s release from prison • Mandela released on 11 February 1990. Event broadcast live all over the world

  11. Challenge: how to negotiate democracy, write a Constitution • ANC – wanted democratically elected constitutent assembly • NP government wanted extended transition period in which constitution would be negotiated • IFP wanted depoliticized process of expert constitution makers, which would be ratified in national plebiscite • Eventually agreed on 2 stage process : (suggested by Mandela): all-party congress to negotiate route to constituent assembly. CA would not have a free hand in drafting final constitution – convention could lay down binding principles restraining it.

  12. CODESA • Conference for a Democratic South Africa • Met in Dec 1991 • 19 groups represented, but not IFP leader Buthelezi • NP wanted drawn out negotiations • ANC wanted quick process • Conflict between de Klerk and Mandela • Whites only referendum followed in March 1992 on whether to continue with reforms. Answer yes by 2/3 majority.

  13. CODESA II • Collapsed after Boipatong massecre where 46 people killed by security forces • ANC withdrew from negotiations, accusing government of complicity • Militant wing of ANC was strenghened • Violence continued

  14. Resumption of negotiations • Through bilaterial negotiations between ANC and NP • 2 key negotiations: Cyril Ramaphosa (ANC) and Roelf Meyer (NP) • Joe Slovo, leader of South African Communist party proposed breakthrough "sunset clause“ in 1992: for a coalition government for the five years following a democratic election, including guarantees and concessions to all sides.

  15. Multiparty Negotiating Forum • Gathered first in April 1993 • Negotiations almost destroyed by assassination of Chris Hani on April 10 • Interruption to negotiations in June 1993 when World Trade Center stormed by right-wing Akfrikaner group • Interim Constitution ratified in November 1993.

  16. Interim Constitution • Entrenched Government of National Unity for 5 years to ensure legal continuity required by NP • Provided for final constitution to be creaetd within 2 years from first sitting of National Assembly • 2/3 of members of National Assembly and Senate (Constitutional Assembly) had to vote for Constitution

  17. Interim Constitution • Much of constitution addressed fears of white minority that there would be vengeance • Cabinet seats given to minority parties for first 5 years. Power sharing in executive power by minority parties – president party running first, 2 deputy presidents (parties running 2 and 3 unless failed to get more than 20% of popular vote, in which case to majority party) • Powers to provincial governments • Entrenched BOR safguarded by powerful constitutional court • House of Assembly (400 members), Senate of 90 (2 from each province)

  18. 1994 elections: victory to ANC (in alliance with Communists/Cosatu) • President: Nelson Mandela

  19. Truth and Reconciliation Commission • The TRC was set up in terms of the Promotion of National Unity and Reconciliation Act, No 34 o 1995 • Based in Cape Town • Mandate: bear witness to, record, and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, reparation and rehabilitation • Final Report 2003

  20. 1994-1999 • Government of national unity • 1996 Final constitution: how is it created? Certified? • 1999 second democratic elections: Thabo Mbeki (ANC exile for 28 years) becomes President. ANC increases majority. • Relected to 2d term 2004

  21. Difficult balance for SA • Between supporting white-dominated business community and keeping ANC’s promises to core constituency of poor black majority • Mbeki: controversial over failure to overtly criticize Robert Mugabe and stance toward AIDS (though now official government policy that HIV causes AIDS)

  22. Resignation of Mbeki • Criticized by ANC over firing of Jacob Zuma in 2005 • Barred from seeking a 3rd term of office • Ran for leadership of ANC and lost, in close race, to Zuma • Allegations of interference in corruption trial of Zuma • ANC executive committee said it would no longer support him and Mbeki resigned • Current temporary president Motlanthe, Zuma’s deputy • Elections scheduled for 2009

  23. South African BOR • Which constitutions seem to have had the biggest influence on the SA BOR? • Horizontal effect? • Are there internal rules of interpretation?

  24. S. 39(1) • Must interpret constitution to “promote the values that underlie and open and democratic society based on human dignity, equality and freedom” and consider international law • Can also consider foreign law

  25. SA Constitutional Court • 11 justices • Appointment of justices • Background • Diversity

  26. SA Constitutional Court • 11 justices • Appointment of justices • Terms: 12 years (7 in interim); 70 year mandatory retirement age • Background • Diversity

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