For our country’s transition from apartheid rule to democracy, an interim constitution was negotiated between representatives of organisations involved in the liberation struggle, represented political parties and other interest groups. After the first democratic elections on 27 April 1994, members of the National Assembly and Senate, as the elected public representatives at the time, met as a body called the Constitutional Assembly to write a new Constitution. In 1996, after two years of public consultation and much debate, the new Constitution was finally adopted.
Our Constitution lays the foundation for an open society based on democratic values, social justice and fundamental human rights and is hailed worldwide as very progressive. It is the supreme law of our country and ensures government by the people under the Constitution. In other words, the Constitution is the highest law of the land and everyone must act according to its provisions and principles, even Parliament. Because we are a constitutional state, all laws made by Parliament must pass the test of constitutionality. So Parliament has to ensure at all times that the laws it makes are in keeping with the letter and spirit of the Constitution.
WHAT IS THE CONSTITUTION?
The Constitution is a law agreed by the people’s representatives that sets out how the state will be constituted and run, our rights and responsibilities as citizens and the creation of particular institutions to support and safeguard our democracy.
Click here to view the Constitution of the Republic of South Africa, 1996.
HOW THE STATE IS CONSTITUTED AND RUN
Our Constitution contains an important democratic principle called the separation of powers. That means that the power of the state is divided between three different but interdependent components or arms, namely the executive (Cabinet), the legislature (Parliament) and the judiciary (Courts of law).
- The Executive: The President is the head of state and of the national executive. He exercises executive authority together with other members of the Cabinet, namely the Deputy President and Ministers. The executive develops policy, for example by preparing and initiating legislation which it submits to Parliament for approval. It then implements that policy by running the administration of the country by means of the different government departments. The executive must account for its actions and policies to Parliament.
- The legislature (Parliament):The national legislature or Parliament consists of two Houses, the National Assembly and National Council of Provinces, whose members are elected by the people of South Africa. Each House has its own distinct functions and powers, as set out in the Constitution. The National Assembly is responsible for choosing the President, passing laws, ensuring that the members of the executive perform their work properly and providing a forum where the representatives of the people can publicly debate issues. The National Council of Provinces is also involved in the law-making process and provides a forum for debate on issues affecting the provinces. Its main focus is ensuring that provincial interests are taken into account in the national sphere of government. In specific cases, local government representatives also participate in debates in the National Council of Provinces.
- The Judiciary:The judiciary is made up of the courts, such as the Constitutional Court, the Supreme Court of Appeal, High Courts, Magistrates’ Courts and other courts established or recognised through an Act of Parliament. The head of the Constitutional Court is also the Chief Justice of South Africa. The Constitution states that the courts must be independent and act impartially. Organs of state such as Parliament and the executive must assist and protect the courts in order to ensure their independence, impartiality, dignity, accessibility and effectiveness.
THE RIGHTS AND RESPONSIBILITIES OF THE PEOPLE
Before its transition to a democratic, constitutional state, South Africa was known as a country in which the rights and freedoms of the majority of people were denied. To prevent this from ever happening again, our Constitution contains a Bill of Rights which can only be changed if two thirds of the members of the National Assembly and six of the nine provinces in the National Council of Provinces agree to such a change.
The rights in the Bill of Rights form the cornerstone of our democracy. An obligation is also placed on the state to respect, protect, promote and fulfil these rights.
Some of the rights enshrined in the Bill of Rights are the right to life, equality, human dignity, freedom of expression, freedom of religion, freedom of association, political rights and the right to peaceful assembly and demonstration. These are normal rights that are guaranteed in most democratic countries because they ensure democracy and freedom.
The Bill of Rights also contains socio economic rights. In South Africa, where a large part of the struggle for freedom was about improving the lives of people, these rights are important. They place a duty on the government to address the problems that people experience when it comes to education, health services, water and housing.
The last group of rights included in the Bill of Rights is often the reason our Constitution is described as very modern and advanced. These rights include the right to the environment being protected, even for future generations, the right of access to information and the right to fair administrative action. The citizens of South Africa are even guaranteed the right to an efficient administration.
INSTITUTIONS THAT SUPPORT AND SAFEGUARD CONSTITUTIONAL DEMOCRACY
A very significant feature of our Constitution is that it sets up several independent bodies to support and safeguard our democracy. Informally these bodies are often referred to as the “Chapter 9 Institutions”, because the most important of these are provided for in Chapter 9 of the Constitution. These include the Human Rights Commission, the Commission for Gender Equality, the Auditor General, the Public Protector and the Electoral Commission. Although the National Assembly may not interfere with the independence of these institutions, they are accountable to the National Assembly and have to report on their activities and the performance of their functions to the Assembly at least once a year.