THE CONSTITUTION OF SOUTH AFRICA

Vol. 21 No. 3 (March, 2011) pp.117-122

THE CONSTITUTION OF SOUTH AFRICA: A CONTEXTUAL ANALYSIS, by Heinz Klug. Oxford: Hart Publishing, 2010. 311pp. Paper. $32.00/£16.95. ISBN: 9781841137377.

Reviewed by Theunis Roux, Faculty of Law, University of New South Wales. Email: t.roux [at] unsw.edu.au.

Ten years ago, with the publication of CONSTITUTING DEMOCRACY (Klug 2000), Heinz Klug gave us one of the best accounts yet written of the causes and nature of South Africa’s transition to democracy. In carefully crafted prose he explained how first the 1993 and then the 1996 Constitutions were forged out of a dynamic interaction between South Africa’s tradition of democratic struggle and the available constitutional models in “international political culture.” Admirers of that book will find Klug’s latest offering, a “contextual analysis” of the 1996 South African Constitution, somewhat less ambitious in design and more workmanlike in execution. Reprising some of the themes developed in the earlier work, Klug on this occasion does not attempt to blend them into a coherent whole, and declines to offer a firm view on whether South Africa’s constitutional democracy is living up to international and local expectations.

The more open-ended approach adopted in the current book is no doubt attributable to the nature of the series for which it was written, Hart Publishing’s CONSTITUTIONAL SYSTEMS OF THE WORLD (under the general editorship of Peter Leyland and Andrew Harding). The blurb for the series declares its aim as being to “provide scholars and students with accessible introductions to the constitutional systems of the world, supplying both a road map for the novice and, at the same time, a deeper understanding of the key historical, political and legal events which have shaped the constitutional landscape of each country.” These are fairly modest goals, and Klug’s contribution to the series easily achieves them. The emphasis on accessibility, however, has produced a book that references very little of the scholarly literature on comparative judicial politics and gives a largely descriptive account of the major constitutional developments in South Africa after the transition to democracy in 1994.

The looser structure starts with Klug’s introductory remarks on his central theme, the notion of a “contextual analysis.” No definition of this term is provided, nor is there any real statement of the scholarly purpose behind this approach. As the discussion progresses, it becomes clear that by “context” what Klug means is something like social issue rather than the political and institutional context for judicial review in South Africa. Even then, however, his list of five issues, which Klug says “incorporate five general themes” (p.2), are somewhat different in kind and thus difficult to ascribe to any particular theoretical or conceptual framework. They comprise: “the legacies of colonialism and apartheid; pervasive social problems, such as crime, gender [*118] relations and HIV/AIDS; legal pluralism; aspiration for a rights-based culture; and democratic governance” (p.2). Absent a definition, it is hard to grasp what makes these issues contextual or what connects them to each other. Why these five and not any other five? All that we are told is that “[e]ach of these categories covers a number of specific issues, and will enable a general discussion of the ways in which the [1996 South African] Constitution – through its creation of institutions, allocation of power, and proclamation of rights – attempts to address the past and construct a future society that transcends the often desperate, violent, unequal and unforgiving realities of the present” (p.2). As academic prose goes this is all quite adequate, but it lacks the clarity of analytic purpose that marked Klug’s earlier book.

What conception of “context,” for example, could connect the last two issues to the first three? As a social phenomenon, the “aspiration for a rights-based culture” is at once harder to pin down than the hard facts of crime and disease and more akin to the chosen constitutional means through which these social problems are to be addressed. The same is true of “democratic governance.” If both this and “the legacies of colonialism and racism” are contextual issues, then the term ceases to have a precise analytic meaning. In any case, none of the five listed issues is specifically addressed in the book. Rather, the book is structured around a fairly conventional narrative progression from the history of the making of the 1996 South African Constitution (Chapters 2-4) to the performance of its major institutions: Parliament (Chapter 6), the executive (Chapter 7) and the courts (Chapter 8). In the end, it seems, the reference to “contextual analysis” is just Klug’s way of signaling his intention to supplement his discussion of legal doctrine with a more sociological treatment of the Constitution in its historical and social context. This is, of course, a perfectly legitimate “law and society” approach. Once the comfort zone of pure doctrinal analysis is abandoned, however, some other analytic framework needs to be put in its place. And this is what the book lacks.

From some of the chapter sub-headings and a few scattered passages in the text it would appear that, had Klug not been burdened by his series brief, he might have wanted to respond in more detail to the most significant book on South Africa’s democratic transition to appear since his own earlier work, Jens Meierhenrich’s THE LEGACIES OF LAW (Meierhenrich 2008). The argument of Meierhenrich’s book runs in many ways contrary to Klug’s account in CONSTITUTING DEMOCRACY. Reviving Ernst Fraenkel’s all-but-forgotten concept of the dual state (Fraenkel 1941), Meierhenrich attributes the confidence placed in law by the main players in South Africa’s negotiated transition to the long-run institutional effects of the “normative state” that existed alongside the “prerogative state” in apartheid South Africa. As he puts it: “the memory of formally rational law ... created the conditions for the emergence of trust between democracy-demanding and democracy-resisting elites” (2008, p.4).

Although Meierhenrich at one point cites Klug’s account of the transition as [*119] though it were compatible with his own, the two are in fact in tension with each other. In his earlier book, as noted earlier, Klug attributed the confidence placed by South Africans in a judicially enforced constitutional pact to the ascendancy of this model in “international political culture.” In so doing, he expressly rejected the findings of a study by Ellmann (1995) to the effect that black South Africans, despite the instrumental use of law under apartheid, retained some residual faith in the independence of the judiciary and the rule of law. For Klug (2000, p.47), “[g]iven the degree to which law and the judicial system were implicated in the construction and daily functioning of the apartheid system,” this argument is unconvincing, and the conclusions Ellmann draws from his study “strained” (2000, p.45). Rather, “the key to understanding the ‘new faith’ in the judiciary must be sought in the particular dynamics of the democratic transition” (p.47). Meierhenrich, by contrast, quotes extensively from Ellmann’s study and uses it as an important plank in his argument. Indeed, Meierhenrich’s book can be read as an extended, more theoretically ambitious version of Ellmann’s study.

Given this divergence of views, it would have been interesting to know what Klug thought of Meierhenrich’s argument. Instead, what we get in THE CONSTITUTION OF SOUTH AFRICA: A CONTEXTUAL ANALYSIS is a tentative parry rather than a full-blooded riposte. Subsection IV of Chapter 1 is thus enticingly headed “Conclusion: Context, Continuity and the Problem of Path Dependency.” The single page Klug devotes to this topic, however, fails to engage with Meierhenrich’s argument in any detail. “Notions of legal continuity and theories of path dependency,” Klug writes, “may account, in part, for the role of law in South African society. Yet it is important to understand the law and the Constitution as parts of a broader historical and social context” (p.22). Well, yes, but proponents of the path dependency argument would hardly deny the importance of the “broader historical and social context,” and thus there is no real joinder of issue here.

Chapter 3 contains a similarly promising sub-heading, “Legacies, Legal Traditions and the Limits of Path Dependency” (p.59). On this occasion, Meierhenrich’s book is not even mentioned in the text, despite the apparently deliberate reference to its title. Rather, the section consists, first, of an account of the four major documents on human rights produced by the African National Congress before the transition, and then a discussion contrasting the last of these documents with the South African Law Commission’s Interim Report on Group and Human Rights. While illustrating Klug’s point that the 1993 and 1996 Constitutions emerged out of South Africa’s tradition of democratic struggle, the path dependency argument is sidestepped rather than confronted head on. The following sentence is typical: “As much as theories of path dependency emphasize that prior choices and events do not simply determine the future but might rather constrain future institutional and policy choices in particular ways, the constitutional product of the democratic transition in South Africa does not guarantee a transformed society but rather facilitates and hinders particular options within the [*120] realm of democratic contestation” (p.59). Once again, proponents of the path dependency argument would probably not wish to dispute the second part of this sentence, and thus it is unclear what contrast Klug is trying to draw. He obviously finds the proposition that apartheid law might have had some enduring beneficial influence on South Africa’s democratic transition deficient in some way, but he does not at any point tell us why this proposition, however irksome, might not at the same time be true.

Chapter 8 subsection IV, titled, “Strategic Engagement and Judicial Pragmatism”, is another section that promises much but does not in the end deliver. Situated in a chapter on the “Constitutional Role of the Courts”, the section provided an opportunity for Klug to relate some of the mainly American literature on the strategic model of judicial behavior to the South African Constitutional Court. None of this literature is cited, however. Instead, the bulk of the section (pp.243-45) is devoted to a discussion of the two so-called Certification Judgments, in which the Constitutional Court reviewed the conformance of the 1996 Constitution to the Constitutional Principles contained in a schedule to the 1993 Constitution. While the first of these decisions, which returned the Constitution to the Constitutional Assembly for amendment, was indeed a remarkable decision, Klug’s discussion of it hangs in the air somewhat – its connection to any overarching thesis unclear. As Klug writes, “[t]he significance of the certification judgments ... lies in the degree to which the Constitutional Court was able to assert itself as the protector of constitutional democracy” (p.245). Indeed. But that statement cries out for an explanation. How was it that the Court was able to pull off this difficult assignment with such seeming ease? Why did the major political parties accept its decision with so little protest? What was it about the political context for judicial review in South Africa or the strategies deployed by the Court that could explain this result?

Earlier in this section Klug writes: “While the Court has achieved a remarkable degree of legitimacy and acceptance of its authority in the first decade and a half of its existence, continuing controversy over judicial appointments and even disappointment over its limited acceptance of direct applications and some constitutional claims, keeps the question of its legitimacy and authority alive” (p.243). The first part of this sentence contradicts the findings of a study that Klug himself cites 14 pages earlier in which it was reported that diffuse public support for the Constitutional Court in 1996-1997 stood at 27.9% (Gibson and Caldeira 2003). If this figure, which showed little change in a follow-up study (Gibson 2008), is accurate, the Constitutional Court’s achievement in the Certification Judgments becomes even more remarkable. Here is a Court, it would seem, that is able to secure compliance with its decisions and the support of all major political parties without building its institutional legitimacy. Once again, this fact cries out for an explanation, or at least for clarification through the use of more clearly defined conceptual vocabulary.

This example illustrates the difficulty of writing introductory texts that are aimed both at students and at comparative [*121] scholars unfamiliar with the country being discussed. In an effort to keep the analysis clear and simple, statements can sometimes be made that could prove misleading. A further illustration of this difficulty comes in Klug’s discussion of the so-called “Hlophe saga” (pp.236-37). There is insufficient space to rehearse the whole of this sorry episode in South Africa’s constitutional history in detail. Suffice it to say that it involved a complaint by the judges of the Constitutional Court against a lower-court judge that he had attempted to interfere in one of their decisions in relation to the since abandoned corruption proceedings brought against Jacob Zuma (now, but not at the time, President of South Africa). The Constitutional Court judges’ handling of the complaint, rightly or wrongly, exposed them to tremendous public criticism, and politicized the judicial process to a potentially destabilizing degree. The episode ended with a controversial decision by the Judicial Services Commission (JSC) that the evidence presented by each side was inconclusive, and therefore that a formal hearing was not required. The controversy surrounding this decision stemmed from the fact that it was taken before the Constitutional Court judges’ evidence, and the lower-court judge’s evidence in reply, had been subjected to cross-examination. Most commentators were of the view that there was a sufficient disparity between the two versions of what happened to warrant further examination and that, if the allegations brought by the Constitutional Court judges had been proven, the lower-court judge ought to have been removed from office.

After recounting the basic facts of this episode, Klug offers the throw-away remark that the JSC’s decision “averted a constitutional crisis” and “paradoxically, strengthened the independence of the judiciary by making it quite difficult to remove a sitting judge” (p.237). This is a provocative interpretation of the JSC’s decision, to say the least. It requires us to set aside all aspects of the episode barring the supposed precedential effect of the JSC’s decision, and then to understand the precedent set by that decision (such as it was), as contributing to the strengthening of judicial independence. Perhaps, with a lot more substantiation, a convincing argument to this effect could be made out. Left unsubstantiated, this reading of the episode is misleadingly superficial. If the allegations against the lower-court judge were indeed well-founded, his actions brought the judiciary into disrepute. Removing this kind of judge from office could only have had the effect of restoring public confidence in the judiciary, with knock-on consequences for the strengthening of judicial independence. Equally, if the Constitutional Court judges lodged the complaint without good reason, they acted improperly, and the South African public had a right to know this. Instead of clarifying the issue one way or the other, the JSC’s decision left the truth of the Constitutional Court judges’ allegations untested, and consequently cast a shadow over the integrity of all concerned. How this result may be said to have strengthened judicial independence is far from clear. The far more likely consequence of the JSC’s decision is that the executive will now find it easier to justify interfering with the powers and functions of the all too [*122] fallible men and women who staff the judicial branch.

The strength of Klug’s book lies in the emphasis it places on constitutional history. More than one third of the book, by my reckoning, is devoted to discussing the political developments and debates that preceded the drafting of the 1996 South African Constitution. As he did in CONSTITUTING DEMOCRACY, Klug here draws extensively on his personal knowledge of the constitution-making process. These pages consequently carry the authority of an insider’s account. Without a clear analytic framework, however, the detail recorded in these pages is all just so much information: useful for those not already familiar with this material, but unhelpful to those who want to know more about what the South African case has to teach about the “global expansion of judicial power” (Tate and Vallinder 1995). For those lessons, Klug’s earlier work and Meierhenrich’s interesting alternative account are the books to read. On the other hand, if what you’re looking for is a concise and up-to-date account of the major constitutional developments in South Africa since 1994, this book, despite its faults, is probably the best thing on the market.

REFERENCES:

Ellmann, Stephen. 1995. “Law and Legitimacy in South Africa.” LAW AND SOCIAL INQUIRY 20: 407-79.

Fraenkel, Ernst. 1941. THE DUAL STATE: A CONTRIBUTION TO THE THEORY OF DICTATORSHIP. New York: Oxford University Press.

Gibson, James L. and Gregory A. Caldeira. 2003. “Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court.” THE JOURNAL OF POLITICS 65: 1-30.

Gibson, James L. 2008. “The Evolving Legitimacy of the South African Constitutional Court.” In François du Bois and Antje du Bois-Pedain, eds. JUSTICE AND RECONCILIATION IN POST-APARTHEID SOUTH AFRICA. Cambridge: Cambridge University Press, pp. 229-66.

Klug, Heinz. 2000. CONSTITUTING DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA’S POLITICAL RECONSTRUCTION. Cambridge: Cambridge University Press.

Meierhenrich, Jens. 2008. THE LEGACIES OF LAW: LONG-RUN CONSEQUENCES OF LEGAL DEVELOPMENT IN SOUTH AFRICA, 1652-2000. Cambridge: Cambridge University Press.

Tate, C. Neal and Torbjörn Vallinder, eds. 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. New York: New York University Press.

*********************