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Judiciary Reform: Interim Constitution Accord

Implementations

Judiciary Reform – 1993

The debate surrounding the establishment of a constitutional state in which the rule of law prevails took place, which resulted in the CODESA (Convention for a Democratic South Africa) Declaration of Intent on December 20, 1991.

As the peace process moved forward, the negotiators representing the ANC and the South African government “agreed upon a final two-chamber legislature elected by proportional representation, an independent judicial system and a bill of rights, as key features of the proposed constitution.”¹

Chief Justice of South Africa, Mr. Justice Corbett, came out in support of a constitutional court for South Africa, as recommended by the Law Commission.²

A draft constitution for the transitional Government of National Unity was published on July 26, 1993. “The draft constitution states flatly that the new constitution ‘shall adhere to and give effect to the constitutional principles,Õ and that a special constitutional court shall have to certify that the constitution conforms with these principles before it comes into operation. Nearly 30 constitutional principles – ranging from the separation of the legislative, executive and judicial functions of government to provision of regional government – are contained in the draft constitution.”³

The Interim Constitution was signed on November 17, 1993. The white-dominated Parliament voted to approve a new democratic constitution on December 22, 1993. The vote tally was 247 to 45.⁴ The interim constitution in Chapter 7 discusses an independent judiciary and constitutional court. The Constitutional Court has the power to overrule the Government on questions of constitutional law. South Africa has never had a court with authority to veto its executives.

“A Mandate For Change; For South Africa, Pace Is Now Issue,” The New York Times, March 20, 1992, Section A, page 1.
“SOUTH AFRICA IN BRIEF; Chief Justice declares support for constitutional court,” BBC Summary of World Broadcasts, April 13, 1992.
“Draft constitution for South Africa unveiled,” The Irish Times, July 27, 1993, page 1.
“South Africa gets democratic constitution Parliamentarians of all races approve non-racial law while Afrikaners hold out for whites-only concessions,” The Globe and Mail (Canada), December 23, 1993.

Judiciary Reform – 1994

Judicial reform took place with the implementation of the 1993 interim constitution.

Judiciary Reform – 1995

President Nelson Mandela officially inaugurated South Africa’s Constitutional Court in Johannesburg on February 14, 1995. Eleven judges to the court were sworn in the ceremony. The first task of the court was to decide on the death penalty.¹ The constitutional court made its first ruling on the death penalty on June 6, 1995, abolishing the death penalty.²

As constitutional debate continued in the Constituent Assembly. The “ANC’s constitutional policy conference at Kempton Park has resolved to keep the present structure of the courts in the final constitution. However, the conference proposed that all courts should be empowered to deal with constitutional matters.”³

“Mandela inaugurates South Africa’s new constitutional court,” Deutsche Presse-Agentur, February 14, 1995.
“SOUTH AFRICA; Constitutional Court abolishes death penalty,” BBC Summary of World Broadcasts, June 7, 1995.
Source: “SOUTH AFRICA; ANC wants present structure of courts retained in constitution,” BBC Summary of World Broadcasts, April 4, 1995.

Judiciary Reform – 1996

The National Assembly adopted the final constitution on May 8, 1996. There were 421 votes in favor. The two members of the African Christian Democratic Party voted against the constitution.¹ The judicial reforms laid out in the interim constitution of 1993 were incorporated in the constitution of 1996. Political parties, including the National Party (NP), challenged some of the provisions of the constitution in the Constitutional Court.²The Constitutional Court approved the final constitution on December 4, 1996.³

Judicial reform concluded with the adoption of the final constitution in 1996.

“SOUTH AFRICA; South African Constitutional Assembly adopts new constitution,” BBC Summary of World Broadcasts, May 8, 1996.
“SOUTH AFRICA; National Party to challenge aspects of new constitution in court,” BBC Summary of World Broadcasts, May 21, 1996.
“South Africa; South Africa To Adopt New Constitution Next Week,” Africa News, December 5, 1996.