Transformative Constitutionalism

Prior to 1994, South Africa had a system of Parliamentary Sovereignty that was based on the Westminster parliamentary system. What this essentially meant was that Parliament was the supreme law-making authority, and that courts had no right of judicial review. In other words, once a law had been passed according to the prescribed procedure, it could not be challenged in any court or tested against any norm of justice, ethics or morality.

There was however a very narrow ambit of judicial challenge in that the courts could challenge the manner in which the legislation was promulgated if it was not in accordance with the required procedure, but other than that, they could not challenge the substantive fairness of the law. This is how apartheid was legally possible as no one could challenge the racist, oppressive, and discriminatory laws passed by the National Party parliament. Parliamentary sovereignty prevailed until 1994 when South Africa had its first democratic election, introduced an Interim Constitution (followed by a Final Constitution), and constitutional supremacy took effect, turning South Africa into a constitutional democracy.

The Constitution is not merely a document of law as it has several fundamental values that underlie it, specifically the human rights listed in the Bill of Rights. These values include human dignity, equality, access to justice, reconciliation, Ubuntu, cultural rights, and many more. The Constitution seeks not only to be authoritative, but transformative.

Transformative constitutionalism is a term that has been described by authors such as Karl Klare as a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. Ultimately, it connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law. The word “transformation” in this context is vast enough to be inadequately captured by the phrase “reform,” but is something short of or different from “revolution” in any traditional sense of the word. Furthermore, transformative constitutionalism is not a neutral concept but is frankly intended to carry a positive valence and connote a social good.

Ultimately, the Constitution seeks to bring about greater equality, fairness, and justice, ultimately “transforming” the country from a racist and oppressive system to a system underpinned by fundamental human rights. The Constitution serves as the supreme law and that standard against which all other laws must be measured, a standard that was lacking prior to 1994. All laws that are not in accordance with the Constitution or fall short of its standards may be declared constitutionally invalid by the courts, which now have the power of judicial review. Ultimately, the Constitutional Court as the highest court in the country and custodian of the Constitution has the final say in all constitutional matters, and must confirm any orders of invalidity made by the High Courts before such an order has any permanent effect.

Furthermore, PS Lange says transformative constitutionalism is an agent of ensuring a smooth relationship and change between the three branches of government, namely the executive, legislature, and judiciary. The principle of constitutionalism is used in this respect to limit the extent to which power is exercised by way of a “separation of powers” detailing the duties and functions of each branch of government, forbidding them from encroaching upon each other’s’ duties. Ultimately, the Constitution provides oversight in this respect, something that is necessary to ensure the effective application of the rule of law.

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