The Rule of Law and Constitutions in rapidly changing societies

In a speech to the London Solicitors Litigation Association on 25 October 2011, F W de Klerk spoke about the rule of law and constitutions in rapidly changing societies.

He said that the new South Africa was founded on the premise that no-one - no majority, no minority, no individual - should ever again be able to unjustly deprive anyone - whether a majority, a minority or an individual - of any fundamental right. "The foundation of our historic national accord was that henceforth relationships between the state and citizens would never again be governed by the arbitrary decisions of this or that group or party - but by the carefully crafted and nationally agreed precepts of the Constitution."

The founders of the Constitution drafted an historic charter that provided the basis for genuine democracy; the rule of law and the enjoyment of fundamental rights.  It was, however, also a transformative document. It rejected the idea that status quo should be maintained. It enjoined South Africans to work for a society based on human dignity, equality and the enjoyment of fundamental rights for all. It empowered government to take steps to promote equality by advancing people who had been disadvantaged by unfair discrimination. It endorsed the concept of land reform. "Thus it provides a framework for rapid change, based on the rule of law and constitutional principles."

At the same time it protected the reasonable rights of all South Africans by accommodating the sometimes competing aspirations and apprehensions of our remarkably diverse population.

According to De Klerk, the South African constitution was much more than a legal document. "In a very real sense it provides the foundation for our new nation. It was not imposed on anyone - but was endorsed by parties that represent an overwhelming majority of our population and its constituent communities. It sets out the goals toward which we must all aspire and the values that should guide our behaviour."

F W de Klerk said that the rule of law would also be crucial in assuring the success and stability of South Africa's rapidly changing society.

The source of much of the injustice that afflicted South Africa before 1994 often lay in the dilution of the rule of law. The white parliament was sovereign and could - and did pass - any law that it liked. There was no Bill of Rights to protect the weak and disenfranchised majority and to set standards and values that would direct and limit the power of the government. The judiciary had only limited ability to defend and enforce the rights of citizens. Indeed, the role of the courts was often restricted to determining whether actions of the executive were bona fides and in accordance with the unrestrainable laws adopted by the sovereign Parliament.

De Klerk said that there was a common misconception that South Africa's peaceful transition, in essence, involved the transfer of power from the old National party government that I headed to the new ANC government headed by Nelson Mandela.
"It did not. Instead, what was involved, was the transition from the old South African constitution where parliament was supreme, to a dispensation where the constitution itself - and not this or that political majority in parliament - was supreme."

According to the former president, South Africans had in recent years entered a period of uncertainty. ‘Perhaps these jitters are just part of the anxiety that accompanies change in all emerging democracies. Nevertheless, some of the concerns regarding the future relate directly to the integrity of our constitutional system and the continuation of the rule of law'. These concerns included

• the erosion of the independence of key institutions such as the National Prosecuting Authority and the Judicial Service Commission;
• increasing attacks on the judiciary and the constitution as obstacles to the will of the majority;
• introduction of legislation - like the Protection of Information Act - that could seriously undermine the right of South Africans to access information on government activities; and
• the failure of government to curb racially provocative statements by senior office bearers.

De Klerk believed that the following factors would play an important role in determining whether South Africa would stay on the high road of constitutionalism and the rule of law - or whether it would stray into the minefields of unrestrained executive power.

The first was the degree to which the pragmatists or the ideologists would determine the ANC's agenda during the coming years. "Fortunately, the ANC has often shown a keen awareness of the importance of practical success and of adhering to the global consensus - even when this has involved sharp deviations from its ideological programme."

The second factor in upholding the rule of law would be the degree to which our increasingly representative judiciary would continue to exercise its crucial role independently, impartially and in strict accordance with the Constitution and the law.

The third factor in upholding the Constitution and the rule of law would be the role that civil society. The F W de Klerk Foundation and its Centre for Constitutional Rights were working ceaselessly to uphold the Constitution.  De Klerk said that he remained personally 100% committed to upholding the historic national accord that he had helped to negotiate between 1990 and 1996.

A fourth factor would be the role of the international community. "We trust that our friends in Britain and elsewhere will continue to take a benign interest in our affairs. We need them to support the maintenance of the rule of law in South Africa with the same vigour as they criticised its absence in the past."

De Klerk concluded by observing that the Constitution made full provision for rapid change based on the rule of law. "The challenge that confronts South Africans will be to ensure that we all abide by the principles, values and vision that it articulates."

Statement issued by the FW de Klerk Foundation, November 1 2011

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