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CERTIFICATION OF THE CONSTITUTION ADOPTED BY THE CONSTITUTIONAL ASSEMBLY
ON 8 MAY 1996
FROM: THE HUMAN RIGHTS COMMITTEE OF SOUTH AFRICA
(HRC)
1 . INTRODUCTION
The Human Rights
Committee of South Africa, founded in 1981, is an independent non-governmental
organisation committed to the promotion
and protection of human rights. Through
its Human Rights Legislative Monitoring and Advocacy Project, it has monitored
and made
numerous submissions during the constitution-making process to ensure
that the final text entrenches a human rights based constitutional
democracy.
It is in this spirit that the HRC wishes to raise concerns about the
certification of the constitutional text.
While the HRC supports the
majority of the provisions, we highlight several sections which we believe
should be referred back to the
Constitutional Assembly for revision, in terms of
section 73A of the interim Constitution. The issues which are raised are issues
which the HRC has been intricately involved in over the life of the
constitution-making process and which are central to the work
of the
organisation.
The thrust of this document is to raise the fundamental
concern that constitutional negotiations have resulted in increased executive
and parliamentary power. We believe that the reach of this power violates the
fundamental democratic principle of separation of
powers and permits
infringements of human rights unacceptably. Checks and balances on the exercise
of powers to appoint judges and
members of human rights institutions are also
seen to be insufficient.
2. METHOD
The document is
divided into three sections; the bill of rights, constitutional amendments, the
judiciary and state institutions supporting
constitutional democracy. In each
section, various provisions are identified as problematic. Under each of these
heads, the relevant
constitutional principles are identified and a brief
motivation for our concern is given. Where possible, the applicable part of
the
constitutional principle identified is in bold to assist the
reader.
3. THE BILL OF RIGHTS
3.1.1 Section
35(1)(f)
'Every-one who is arrested for allegedly committing an offence
has the right to be released from detention if the interests of justice
permit,
subject to reasonable conditions.'
Section 35(1)(e)
‘ at
the first Court appearance after being arrested to be charged or informed of the
reason of her or his further detention
failing which she or he shall be entitled
to be released'
3.1.2 Relevant Constitutional
Principle(s):
Principle II
Everyone shall enjoy all
universally accepted fundamental rights, freedoms and civil liberties, which
shall be provided for and protected
by entrenched and justiciable provisions in
the Constitution, which shall be drafted after having given due consideration to
inter
alia the fundamental rights contained in Chapter 3 of the (interim)
Constitution.
Principle V
The legal system shall ensure the
equality of all before the law and an equitable legal process.
3.1.3
Grounds
Section 35(1)(f), unlike its corresponding provision in the
interim Constitution (s25(2)(d), is ambiguous in its implications for
the onus
of proof in bail proceedings. Through HRC’s legislative monitoring, we
have learnt that the intention behind this
shift is an attempt to ensure that
the recently enacted bail legislation survives constitutional scrutiny. This
legislation (The
Criminal Procedure Second Amendment Act 1 995) reverses the
onus of proof in bail proceedings for certain serious offences. The
provision
in the interim Constitution uses the word 'unless' in place of 'if', and has
been held by the Supreme Court to mean that
if there is an onus of proof in bail
proceedings, it would lie with the state (Ellish en Andere v Prokureur-Generaal,
Witwatersrand
1 994(5) BCLR 1 (W).
The HRC believes that in light of the
constitutional principles listed above, the Constitution should unequivocally
require the state
to bear the onus of proof in bail proceedings. The
Constitutional Court has identified the universally recognised rights to be
presumed
innocent and not to be deprived of one's liberty as fundamental.
Reverse onus provisions in bail proceedings not only violate these
rights, but
in the South African context, discriminate inequitably against unrepresented
accused persons in the legal process. While
the measure is regarded by its
proponents as a justifiable limit to rights in light of the need to fight crime,
this method fails
to achieve this end. If due regard to the fundamental right
enshrined in section 25(2)(d) of the interim Constitution had been given,
HRC
believes that the term 'unless' would have been retained.
Section
35(1)(e) was the final amendment in the Constitutional negotiations and
postulates that there could be a reason for further
detention other than the
fact that there is a charge pending against the arrested individual. This
section as mentioned above seeks
to limit the protections available to accused
individuals.
3.2.1 Section 36(1)
'The rights entrenched in this
Chapter may be limited only in terms of law of general application to the extent
that the limitation
is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into account
all
relevant factors including - ...'
3.2.2 Relevant constitutional
principle(s)
Principle II
Everyone shall enjoy all
universally accepted fundamental rights, freedoms and civil liberties, which
shall be provided for and protected
by entrenched and justiciable provisions in
the Constitution, which shall be drafted after having given due consideration to
interalia
the fundamental rights contained in Chapter 3 of the (interim)
Constitution.
3.2.3 Grounds
The section violates Constitutional
Principle 11 in that rights are insufficiently protected from state power. The
limitations clause,
being the vehicle through which government can limit rights,
needs to offer strong protection in order to prevent the abuse of state
power.
Negotiations on the clause in the Constitutional Committee centred on whether
limitations on rights should have to be 'necessary'
or only 'reasonable and
justifiable', it being common cause that the latter test introduces a lower
level of scrutiny than the former.
The argument which ultimately held sway with
negotiators and which resulted in the adoption of the lower test was that this
was
necessary in order to facilitate government's fight. against
crime.
In HRC's view the human rights culture envisioned by Principle II
requires a stricter test to apply to the limitation of rights.
Given South
Africa's history of human rights abuse and the difficult challenges which
transformation presents, it is crucial that
the Constitution offers maximum
protection to human rights. The first two years of democratic governance has
already seen human
rights being sacrificed for the sake of political expedience
and alarm bells are already ringing for those who would like to place
their full
trust in government. In order to establish a human rights culture in South
Africa, it is vital that government be compelled
to find solutions which do not
compromise rights standards unnecessarily. While one can fully support
government's commitment to
fight crime, lowering the protection offered to human
rights is not a legitimate method. All fundamental rights, not only those
which
have an impact on crime prevention measures, are affected.
3.3.1 Section
37.
'A state of emergency may be declared only in terms of an act of
parliament and only when the life of the nation is threatened by
war,
invasion... and only when the declaration is necessary to restore peace and
order.'
3.3.2 Relevant Constitutional Principle(s)
Principle
11
Everyone shall enjoy all universally accepted fundamental rights,
freedoms and civil liberties, which shall be provided for and protected
by
entrenched and justiciable provisions in the Constitution, which shall be
drafted after having given due consideration to interalia
the fundamental rights
contained in Chapter 3 of the (interim) Constitution.
3.3.3
Grounds
Section 37 sets out when a state of emergency can be declared.
A crucial omission is that the provision is silent on who can declare
a state of
emergency.
Given the extensive powers of the state to limit human rights
during an emergency, it is also imperative that the Constitution explicitly
makes provision for how a state of emergency should be declared. Because of the
extreme nature of this event it is important that
such a provision should not
permit one individual on their own to declare a state of emergency.
In
terms of section 37, 21 days are given before parliamentary oversight occurs.
The HRC believes that seven days is sufficient time
for the National Assembly to
convene to decide this crucial issue.
4. CONSTITUTIONAL
AMENDMENTS
4.1.1 Section 74. Amending the
Constitution
4.1.2 Relevant Constitutional Principle(s)
Principle IV
The Constitution shall be the supreme law of
the land
Principle XV
Amendments to the Constitution shall
require special procedures involving special majorities.
4.1.3
Grounds
This section fails to provide sufficiently stringent mechanisms
to amend the Constitution. Such an instrument should not easily be
susceptible
to amendments which the text in its present form is. Section 74 simply requires
a two thirds majority of the National
Assembly for an amendment to occur.
Support from the National Council of Provinces is only required where an
amendment concerns
the powers, functions or boundaries of the
provinces.
The National Assembly should not be allowed to amend the
supreme law of the land so easily as this effectively make parliament supreme.
In the 2 years of the interim Constitution, nine acts have been passed amending
the Constitution. Each of the acts has included
various amendments. This is a
trend which the HRC sees as problematic and believes that such a practise could
be used to manipulate
the result of court cases which Parliament is unhappy
with.
At a minimum, both houses of Parliament should be involved in the
process to amend the Constitution. A two thirds majority should
be obtained in
both houses. At present an amendment which relates to provinces requires only
the approval of six provinces. The
HRC believes that seven of the nine
provinces should agree to amendments and that this procedure should apply to all
constitutional
amendments.
5. THE JUDICIARY
5.1.1 Section 1
78 (1) The composition of the Judicial Service Commission
5.1.2 Relevant
Constitutional Principle(s)
Principle I
The Constitution
of South Africa shall provide for the establishment of...a democratic system of
government ...
Principle VI
There shall be separation of
powers between the legislature, executive and judiciary with appropriate checks
and balances to ensure
accountability, responsiveness and
openness.
Principle VII
The judiciary shall be
appropriately qualified, independent and impartial and shall have the
power...
5.1.3 Grounds
Who the judge is is crucial in the outcome
of a particular case, particularly in constitutional adjudication and therefore
how, and
by whom, judges are appointed is of utmost significance. The Judicial
Service Commission has the major responsibility to appoint
judges and therefore,
as a mechanism, must be capable of ensuring that judges appointed are
independent of the other arms of government.
This principle is fundamental to
the separation of powers and therefore to the establishment of a democratic
system of government.
In HRC's view the composition of the Judicial Service
Commission is unfairly weighted in favour of the legislature and the executive,
and therefore does not reflect the appropriate balance of interests to promote
an independent judiciary.
In terms of the interim Constitution, the JSC
was made up of 4 parliamentarians (senators), 5 executive appointments (4 in
consultation
with Cabinet), 5 members from the legal profession with the
remaining three members representing key posts in the judiciary. Thus
there
were 17 permanent members.
Of the 23 permanent members of the JSC under
the final Constitution, 10 are parliamentarians, 5 are executive appointments (4
in consultation
with political party leaders) and representation of the
judiciary and the legal profession remains the same.
Thus, the primary
distinction between the composition of the JSC under the interim Constitution
and the final text is that legislative
representation is increased by 6 members.
Thus, while under the interim Constitution the legislature constituted 23.5% of
the JSC,
under the final Constitution it constitutes 43.5%. In addition,
political party leaders are consulted on 4 executive appointments,
thereby
giving politicians effective say in over 60% of the JSC's membership. The
executive and legislature together control over
65 % of the JSC's membership,
thus exercising effective control over judicial appointments.
Criticism
was levelled at the provisions in the interim Constitution for failing to
balance government representation with that of
civil society. The final
provisions now present the added problem that representation is too heavily
weighted in favour of the other
two arms of government.
(The HRC made
submissions earlier this year to the CA on how to achieve this
balance)
5.2.1 Section 175. Acting judges.
Acting-Judges of the
Constitutional Court are appointed by the President on the recommendation of the
Minister of Justice acting with
the concurrence of the President of the
Constitutional Court and the Chief Justice. The Minister of Justice appoints
acting judges
to other courts after consultation with the senior judge of the
court on which the judge will serve.
5.2.2 Relevant Constitutional
Principle(s)
Principle I
The Constitution of South Africa
shall provide for the establishment of ... a democratic system of government
...
Principle VI
There shall be separation of powers
between the legislature, executive and judiciary with appropriate checks and
balances to ensure
accountability, responsiveness and
openness.
Principle VII
The judiciary shall be
appropriately qualified, independent and impartial and shall have the
power...
5.2.3 Grounds
The power to appoint acting judges lies
largely with the Minister of Justice, especially for judges other than
Constitutional Court
judges where the Minister effectively has sole discretion
to make appointments. While the peculiar circumstances surrounding the
appointment of acting judges may justify departing from the normal procedures,
it is crucial that there are checks and balances on
the exercise of this power.
Without these checks and balances, political control over judicial appointments
is sanctioned, thereby
compromising the principle of the separation of
powers.
Safeguards which negotiators have omitted to consider would
include tenure restrictions, open process and the involvement of the JSC
in
various ways.
5.3.1 Omission. Section 178(6)
Provision for the
Judicial Service Commission to conduct appointment procedures in
public.
5.3.2 Relevant Constitutional Principle(s)
Principle
VII
There shall be a separation of powers between the legislature,
executive and judiciary with appropriate checks and balances to ensure
accountability, responsiveness and openness.
5.3.3
Grounds
Holding appointment proceedings in public is crucial for
ensuring that appointments are conducted without fear, favour or prejudice
and
thereby constitute a fundamental check and balance to the exercise of power.
This has already been demonstrated in the appointment
process of Constitutional
Court judges in 1994. While the current practice of the JSC is to hold
interviews in public, there is
no guarantee that this will necessarily continue.
In light of the explicit direction in the principle stated above to include
appropriate
checks and balances to ensure accountability and openness, the HRC
believes that the Constitution should compel the JSC to conduct
appointment
proceedings in public.
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STRUCTURES OF GOVERNMENT PROMOTING CONSTITUTIONAL
DEMOCRACY
6.1.1 Section 193.
Appointment of members
of state institutions supporting constitutional democracy.
6.1.2
Relevant Constitutional Principle(s)
Principle XXIX
The
independence and impartiality of a Public Service Commission, A Reserve Bank,
and Auditor-General and a Public Protector shall
be provided for and safeguarded
by the Constitution in the interests of the maintenance of effective public
finance and administration
and a high standard of professional ethics in the
public service.
6.1.3 Grounds
Chapter 9 establishes various
watchdog institution (including the Auditor-General and the Public Protector)
which have the function,
inter alia, of checking the exercise of parliament's
power. It is therefore crucial, in order to ensure their independence, that
appointments to these bodies are not controlled by political parties. However,
the appointment provisions have the effect of placing
responsibility squarely in
the hands of parliament. The independence and impartiality of the structures
are thereby compromised
by permitting parliament to appoint its own
watchdogs.
Throughout the CA process, it was argued by various interest
groups, including the HRC, that civil society itself should have representation
on the appointment committee. Negotiators, while retaining a parliamentary
committee as the appointing structure, agreed to include
section 193(6), which
empowers the committee to involve civil society in the recommendation process.
However, when this subsection
is read with section 59(a), to which it refers, it
appears that it could have the effect of removing the duty to involve the public
which would be required if section 193(6) had not been approved. This
interpretation is drawn from the use of the word 'may' in
section 1 93(6) and
the use of the word 'must' in section 59(a). In light of the requirements of
accountability, openness and responsiveness,
it is vital that the public's
involvement is guaranteed.
We thank you for the opportunity to address
the Court on some of the issues that we believe make the Constitution
deficient.
Jeremy Sarkin
National
Chairperson
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Human Rights Committee of South
Africa
BRAAMFONTEIN
18 April 1996
CERTIFICATION OF
CONSTITUTIONAL TEXT
The Human Rights Committee is a non-governmental
organisation, founded as the Detainees Parents Support Committee in 1981,
committed
to the protection and promotion of human rights. Our Human Rights
Legislative Monitoring and Advocacy Project has over the past
few years
monitored, reported on and participated in the constitution-making process with
the aim of ensuring that the final document
will provide for sound structures of
governance and will protect human rights adequately.
The last phase of
the constitutional negotiations have now been reached with political parties
attempting to reach consensus on outstanding
issues. The crucial stage when the
Constitutional Court has to certify whether the text complies with the 34
constitutional principles
is thus drawing near.
We note that the
Constitutional Court has set aside the month of June to perform its functions in
terms of section 71 of the Constitution.
We note too that the Constitutional
Court rules (15(3)) empower the President of the Court determine the way in
which the matter
shall be disposed of. Political parties represented in the
Constitutional Assembly shall however be entitled to present oral argument
to
the Court as of right.
The proposals put forward in this letter relate to
the President’s discretion to determine the way in which the Court’s
section 71 function is dealt with. We wish to raise two points.
Firstly,
we urge the court to set a process in motion enabling civil society to make
representations to the Court on the question
whether the constitutional text
complies with the 34 Constitutional Principles. The HRC believes that civil
society, and not only
political parties, should be given this opportunity. We
note from documentation of the Management Committee of the Constitutional
Assembly that parties are preparing to brief counsel to make representations to
the Court. Given the time needed for preparations,
it would therefore seem
necessary for decisions in this regard to be made expeditiously. The process
could however take various
forms. Public hearings could take place around the
country or the public could be invited to make written submissions.
Our
proposal is motivated by the following reasons. Firstly, it has been stated
from the outset that public participation is a key
element of the
constitution-making process and it is common cause that the legitimacy of the
final document rests on whether it is
acceptable to the South African public.
Secondly, political party submissions cannot on their own provide the court with
a balanced
view on whether or not the text complies with the Constitutional
Principles.
The final stages of the constitution-making process have been
characterised by closed political party negotiations, (referred to a
bi- or
multi-laterals), and it is in these forums where political agreement on
contentious issues has been reached. Although civil
society was given the
opportunity to present heir views at two distinct phases of the process, critics
have observed that insufficient
public participation has taken place and that
the key agreements reflect political compromise and trade-offs. These
trade-offs have
been made during the past few months, this being after the
deadline (20 February) for public comment on the November draft. Thus
civil
society has been effectively excluded from the last and crucial phases of the
process. This is particularly true of more marginalised
groups. Moreover,
civil society has not been afforded the opportunity to comment on whether the
final package complies with the
principles which underlie a democratic
nation.
The HRC believes that some of the trade-offs potentially
undermine key components of the Constitutional Principles. Insufficient
separation of powers, independence of the judiciary, checks and balances on
state power, transparency in government as well as a
weakened bill of rights are
issues: which are of particular concern. Short-term political gain and
pandering to electoral and governmental
strategies have motivated compromises,
with the result that the text may not serve as a long-standing superstructure
for a stable
constitutional democracy.
In this context, it is crucial
that civil society be afforded an opportunity to present their views to the
Court on the issue of whether
the parties have complied with their mandate to
draft a text in accordance with the agreed on principles. The monolithic views
of
political parties which have forged consensus cannot be sufficient to give
the court a balanced view of whether or not the text meets
the requirements of
the Constitutional Principles.
Our second point relates to the need to
make the procedure and the approach which the Court will adopt in exercising its
function
publicly known. The public needs to assured that the Court, as the
ultimate determinant of whether or not the text can serve as
South
Africa’s supreme law, is taking its role seriously.
The adoption of
the final Constitution signals a critical point in the country’s history.
As the supreme law of the land, it
must not only reflect the diversity of the
nation, but be a voice of the peoples of this nation. it is crucial that the
final text
is not only a document of the political parties, but, that all South
Africans are satisfied that the parties have fulfilled their
mandate.
PROF. JEREMY SARKIN
Chairperson, Human Rights
Committee
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TO: Human Rights Committee of South
Africa
28 May 1996
Further to your facsimile dated 18 April 1996
and our reply reference 1/14/18, for the sake of your records. I have been
asked by
the President of the Constitutional Court to inform you that all
Constitutional Court judges did in fact receive copies of your letter
and that
due account has been taken of it.
M S NIENABER
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