South Africa's Experience in Constitution-Building
University of Wisconsin Law School
April 12, 2011
Univ. of Wisconsin Legal Studies Research Paper No. 1157
This article draws on a brief history of the constitution-making process in South Africa to highlight five particular aspects of constitution-building. Noting that the process of constitution-making has become a key element in political transitions and post-conflict settlements in the post-cold war era, it is argued that the process of building a constitutional democracy encompasses a far broader range of issues than the drafting and adoption of a new constitution. The chapter identifies and discusses five sources of variation in constitution-building processes that impact the different issues enabling the building of a constitutional democracy. First, there is a temporal dimension, which may be characterized as being both macro and micro in scope, in that the general historic timing of a democratic transition as well as the specific time-frames within the process of constitution-making, all have clear consequences for the choices available to the parties. Second, there is question of process in which the specific process of constitution-building, chosen from a range of historic options, is deployed by the parties to achieve specific advantages over their opponents but can also serve as a means to ensure that the political transition proceeds. Third, participation in the constitution-building process is an aspect that is important both for those who are active in the actual constitution-making process as well as the broader society that is called upon to accept and legitimate the constitutional product as the basis of a future social compact. Fourth, the recognition and use of constitutional principles is an important element of constitution building in this era. Finally, the substantive choices inherent in a constitution-building process involve alternative institutional designs and substantive elements of the constitution, all of which have a significant impact on the overall process of constitution-building.
Number of Pages in PDF File: 48
Keywords: South Africa, constitution, constitution-making, nation building, democracy, democratic transitions, post-conflict settlement
Date posted: April 14, 2011