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FIRST SUPPLEMENTARY REPORT ON CONSTITUTIONAL PRINCIPLES BY THE
TECHNICAL COMMITTEE ON CONSTITUTIONAL ISSUES TO THE NEGOTIATING
COUNCIL 15
JUNE 1993
1. Introduction
In response to the debate in the Negotiating
Council on 3 June 1993 regarding the draft constitutional principles contained
in paragraph
2 of our Third Report, and subsequent submissions to us, we have
given further consideration to paragraphs 2.2, 2.4, 2.8 and 2.12,
which were
referred back to us by the Council for reformulation.
2. Paragraph
2.2: Gender
It was agreed that at the meeting of the Council that
paragraph 2,2 should be amended to include "gender" in line two. As amended
it
will read:
2.2 The Constitution shall be the supreme law of the land, shall be binding
on all organs of government, shall prohibit racial, gender
and all other forms
of discrimination and promote racial and gender equality and national
unity.
3. Paragraph 2.4: Judiciary
It was agreed at the
meeting of the Council that Paragraph 2.4 should be amended to delete
"legitimate" in line one. As amended
it will read:
2.4 The judiciary shall
be competent, independent and impartial and shall have the power and
jurisdiction to safeguard and enforce
the constitution and all fundamental
rights.
4 Paragraph 2.8: Diversity of language and culture
4.1 We were
asked to reconsider the formulation of paragraph 2.8 in the light of the debate
in the Negotiating Council. In our view
the question of religious
freedom
does not require specific mention in paragraph 2.8. It is a universally accepted
freedom and is covered by paragraph 2. 10.
We have had regard to the debate and
to the International Declaration on the Rights of Persons Belonging to National
or Ethnic,
Religious and Linguistic Minorities adopted by the United Nations
General Assembly on 18 December 1992. Consistently with the way
in which
language and culture is dealt with in that Declaration, we suggest that
Paragraph 2.8 should be amended and reformulated
as follows:
2.8 The diversity of language and culture shall be acknowledged and
protected, and conditions for their promotion shall be encouraged.
4.2 In
one of the submissions to us it was suggested that paragraph 2.8 should also
acknowledge the "diversity of peoples". We are
of the opinion that such
diversity in all its relevant aspects is covered by the general constitutional
principles, which on the
one hand recognises and protects cultural and
linguistic diversity, and on the other prohibits discrimination.
5. Paragraph 2.12 : Traditional leaders and indigenous law:
5.1 Indigenous or customary law is an established system of immemorial
rules which have evolved from the way of life and national
events of the people,
the general context of which was and is a matter of common knowledge and
adherence, coupled with precedents
applying to specific cases. It is a system
of law of ancient origin and is largely still unwritten outside Natal and
KwaZulu. Even
though the greater part of indigenous law is unwritten and
therefore sometimes looked at with uncertainty as to the precision thereof,
sight must not be lost of the fact that historically it has successfully
provided indigenous communities with rules necessary for
their orderly
existence.
Notwithstanding deep social and economic changes in our
society, indigenous law continues to play an important role in the daily lives
of a great many South Africans.
5.2 Indigenous law could find a favourable reception in the democratic
political environment that is being planned, if it is allowed
to develop
spontaneously in a given jural community. It may require reform, particularly
as far as the position of women, children
and the right of individual ownership
are concerned, and in our view the constitution ought not to inhibit the reform
that may be
desirable.
5.3 With regard to the compatibility of fundamental rights with
indigenous law it should be noted that most of the instruments concerned
with
human rights mention the protection of cultural rights on a basis consistent
with equality. Paragraph 4 of the preamble of
the 1981 African Charter on Human
and People's Rights urges states to take into consideration "the virtues of
their historical tradition
and the values of African civilization"; article
18(2) gives definition to this ideal by obliging states "to assist the family
which
is the custodian of moral and traditional values recognised by the
community".
Neither of these provisions is remarkable in itself, but when viewed in the
overall context of the Charter (which makes no reference
to individual rights in
marriage) they suggest a strong commitment to preservation of the foundation of
African culture: the family.
The Draft Declaration of the Rights of
Indigenous Peoples adopted on 14 August 1992 (of the Working Group on Indigenous
Populations
which is a sub-committee of the UN Commission on Prevention of
Discrimination and Protection of Minorities), prepared for adoption
by the UN
General Assembly during 1993 (the UN Year of Indigenous People) recognises in
the seventh preambular paragraph "the urgent
need to respect and promote the
rights and characteristics of indigenous people, especially their right to their
laws, territories
and resources, which stem from their history, philosophy,
cultures, spiritual and other traditions as well as from their political,
economic and social structures". The operative paragraph 8 of the Draft
Declaration specifically provides for the right of indigenous
peoples "to revive
and practise their cultural identity and traditions, including the right to
maintain, develop and protect the
past, present and future manifestations of
their cultures", whereas the operative paragraph 16 recognises the "right to the
full
recognition of their own laws and customs, land-tenure systems and
institutions... "
5.4 It should be kept in mind that international
declarations and conventions universalising human rights were the product of
modern
jurisprudence, and for many historical, political and other reasons, to a
large extent neglected the indigenous doctrines of rights.
Unfortunately to
some degree this is still the prevailing situation in South Africa. Where a
society is in fact culturally plural,
as South Africa is, the recognition of
indigenous law gives effect to the accepted constitutional principle
acknowledging cultural
diversity. The infrastructure for the legal enforcement
of indigenous law already exists.
Chiefs' and headmens' courts have jurisdiction to apply indigenous law, and
even magistrates' courts and the Supreme Court may now
take judicial notice of
customary law.
5.5 It is suggested that a symbiotic approach between indigenous law and
fundamental rights may be developed (ultimately growing into
a hybrid system).
This should not prove a threat to important aspects of indigenous law such as
the payment of lobola or bogadi.
The diversity of the systems of indigenous law
could justify the allocation of powers in respect thereof to the
SPR’s.
5.6 A submission has been made to us that:
... ordinary legislation
cannot modify indigenous law. However, both legislation and indigenous law are
to be subject and conditioned
to all constitutional sources of law, including
federal and state constitutions.
It is further contended in the same
submission that:
... indigenous law is recognised and protected only to
the extent that it conforms with democratic requirements and with the overall
blueprint of society.
There seems to be general acceptance that in the event of conflict,
fundamental rights should prevail over indigenous law. It was
however clear
from the debate in the Negotiating Council on paragraph 2.12 of our Third Report
that certain participants took the
view that indigenous law should be made
subject to legislation. This raises a question for decision by the Negotiating
Council,
namely:
Should the legislature have the power to amend or repeal
provisions
of indigenous law?
5.7 It was agreed that the status of traditional leaders should receive
appropriate recognition in the constitution. In one of the
submissions to us it
is said that acknowledgement of the status of traditional leaders is not
sufficient and that the constitution
should specifically recognise "the
institution of traditional leaders, including the traditional councils as
established by customary
law and usage’s". As long as the constitution
recognises the status of traditional leaders as well as indigenous law (which
acknowledges the institution of traditional leaders), it is our opinion that
this concern will be met.
5.8 We suggest that paragraph 2.12 of our Third
Report be reformulated as
follows:
The status of traditional
leaders shall be recognised in the constitution. The constitution shall provide
for the recognition of
indigenous law and its application by the courts.
Indigenous law shall be applied subject to the provisions of the fundamental
rights
contained in the constitution.
Depending on the outcome of the debate on paragraph 4.6.2, the following
words may have to be added at the end of the final sentence:
"and to
legislation dealing specifically therewith".
6. Response to
further submissions
6.1 We have received comments and questions from
certain participants on matters raised by us in our Third and Fourth Reports.
Some
request us to undertake research, and provide them with advice. We
consider that this is the responsibility of the participants
themselves and not
our responsibility. Some seek to reopen issues which we understood to have been
resolved at the meeting of the
Negotiating Council on 3 June 1993. We consider
that we can only do this if instructed to do so by the Negotiating Council.
Some
raise
issues relevant to the debates which are still to take place on our Third and
Fourth Reports which will presumably be raised by the
participants concerned
when these Reports are debated in the Council.
6.2 We are concerned that if
we are expected to reply in detail to all the issues and question raised with us
by participants, we
will be diverted from the tasks assigned to us by the
Negotiating Council and will be unable to address them efficiently and
expeditiously.
We have considered all the submissions made to us, and are of
the opinion that there is no need to add to this Report, which in
our view is
complete, and sufficient to facilitate the debate in the Council on all relevant
issues.
EMBARGOED (PAGES 1-7) UNTIL DELIVERY/TABLING
IN
NEGOTIATING COUNCIL MEETING
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