,
, amendment unless there is nearly unamimous agreement
and the proposed changes do not fundamentally alter the
spirit of the constitution system.
§ Under constitutional supremacy, the courts are mandated
to enforce the constitution even to the point of striking
down the decisions of the democratically elected
legislature.
§ In 1996 the final constitution was adopted and the interim
was repealed and fell away.
o 1996 Constitution and the Certification process:
§ The Constitutional Assembly was given 2 years to produce a
constitution that conformed to the 34 Constitutional
Principles that had been agreed on during the 1991-3
political negotiations.
§ The initial draft was not certified as being compliant with
the Constitutional Principles and the draft was reviewed.
The amended draft was accepted and signed into power.
§ Following the Constitution being signed into power, the 34
Constitutional Principles fell away and cannot be raised in
any court ever again.
- Basic principles of the new constitutional order:
o Constitutionalism;
§ The theory of constitutional law;
§ A body of theoretical prescriptions.
§ Prescribes what a constitution should do as opposed to
describing what a particular constitution does.
§ Must provide enough power to govern but limit such power
to protect citizens.
§ Limitation works in two ways: restricting possible actions
by an organ of state and also prescribing a procedure that
must be followed.
§ Through the BoR, substantive limitations are imposed as
well – the state may not use its power to violate any rights
on the BoR and has a duty to promote and protect them.
§ Constitutional Supremacy ensures constitution is binding
on all laws and branches of government – any action or law
not in accordance thereof will not be binding.
§ For constitutional supremacy to be effective, the judiciary
must have the power to enforce it – section 172 allows a
court with jurisdiction to declare any law or conduct
inconsistent with Constitution to be invalid
§ The constitution is not only enforceable through court –
citizens may lobby and put pressure on the government to
give effect to their rights.
§ Entrenchment prevents parliament from amending the
Constitution without following special procedures and
without the support of special majorities. Whilst most
provisions may be amended by two third majority in
, National Assembly, amendment of BoR must be passed by 6
provinces in the National Council of Provinces.
o The Rule of Law;
§ The purpose of the rule of law is to protect basic individual
rights by requiring the government to act in accordance
with pre-announces and clear general rules that are
enforced by impartial courts in accordance with fair
procedures.
§ Rule of law requires state organisations to act in
accordance with law:
• They must obey law;
• They cannot exercise power over anyone unless the
law permits them to do so. There must be a law
authorizing everything the state does.
• Consists both procedural and substantive
components:
o Procedural:
§ Arbitrary decision-making is
forbidden
o Substantive:
§ Government must respect the
individual’s basic rights
• Laws must also be clear and accessible – others
would be vague and unconstitutional and invalid.
o Democracy; and
o Accountability;
o Separation of powers;
o Checks and balances;
o Co-operative government; and
o Devolution of power.
§ Some are explicit, others are implied.
- Democracy and accountability:
o Constitution requires government to respect the principle of
democracy;
o Government can only be legitimate in so far as it rests on the
consent of the governed.
o Like any other constitutional norm, law or conduct inconsistent
with democracy is invalid.
o The Constitution recognizes three forms of democracy:
§ Representative democracy;
§ Participatory democracy;
§ Direct democracy.
o The Constitution is aimed at establishing a representative
democracy that has participatory elements.
o It further provides for an electoral system and contains provisions
dealing with the mandate of representatives.
o Opportunities for participation in the executive decision-making
are less clearly developed.
, amendment unless there is nearly unamimous agreement
and the proposed changes do not fundamentally alter the
spirit of the constitution system.
§ Under constitutional supremacy, the courts are mandated
to enforce the constitution even to the point of striking
down the decisions of the democratically elected
legislature.
§ In 1996 the final constitution was adopted and the interim
was repealed and fell away.
o 1996 Constitution and the Certification process:
§ The Constitutional Assembly was given 2 years to produce a
constitution that conformed to the 34 Constitutional
Principles that had been agreed on during the 1991-3
political negotiations.
§ The initial draft was not certified as being compliant with
the Constitutional Principles and the draft was reviewed.
The amended draft was accepted and signed into power.
§ Following the Constitution being signed into power, the 34
Constitutional Principles fell away and cannot be raised in
any court ever again.
- Basic principles of the new constitutional order:
o Constitutionalism;
§ The theory of constitutional law;
§ A body of theoretical prescriptions.
§ Prescribes what a constitution should do as opposed to
describing what a particular constitution does.
§ Must provide enough power to govern but limit such power
to protect citizens.
§ Limitation works in two ways: restricting possible actions
by an organ of state and also prescribing a procedure that
must be followed.
§ Through the BoR, substantive limitations are imposed as
well – the state may not use its power to violate any rights
on the BoR and has a duty to promote and protect them.
§ Constitutional Supremacy ensures constitution is binding
on all laws and branches of government – any action or law
not in accordance thereof will not be binding.
§ For constitutional supremacy to be effective, the judiciary
must have the power to enforce it – section 172 allows a
court with jurisdiction to declare any law or conduct
inconsistent with Constitution to be invalid
§ The constitution is not only enforceable through court –
citizens may lobby and put pressure on the government to
give effect to their rights.
§ Entrenchment prevents parliament from amending the
Constitution without following special procedures and
without the support of special majorities. Whilst most
provisions may be amended by two third majority in
, National Assembly, amendment of BoR must be passed by 6
provinces in the National Council of Provinces.
o The Rule of Law;
§ The purpose of the rule of law is to protect basic individual
rights by requiring the government to act in accordance
with pre-announces and clear general rules that are
enforced by impartial courts in accordance with fair
procedures.
§ Rule of law requires state organisations to act in
accordance with law:
• They must obey law;
• They cannot exercise power over anyone unless the
law permits them to do so. There must be a law
authorizing everything the state does.
• Consists both procedural and substantive
components:
o Procedural:
§ Arbitrary decision-making is
forbidden
o Substantive:
§ Government must respect the
individual’s basic rights
• Laws must also be clear and accessible – others
would be vague and unconstitutional and invalid.
o Democracy; and
o Accountability;
o Separation of powers;
o Checks and balances;
o Co-operative government; and
o Devolution of power.
§ Some are explicit, others are implied.
- Democracy and accountability:
o Constitution requires government to respect the principle of
democracy;
o Government can only be legitimate in so far as it rests on the
consent of the governed.
o Like any other constitutional norm, law or conduct inconsistent
with democracy is invalid.
o The Constitution recognizes three forms of democracy:
§ Representative democracy;
§ Participatory democracy;
§ Direct democracy.
o The Constitution is aimed at establishing a representative
democracy that has participatory elements.
o It further provides for an electoral system and contains provisions
dealing with the mandate of representatives.
o Opportunities for participation in the executive decision-making
are less clearly developed.
