Marking Constitutional Transitions: The Law and Politics of Constitutional Implementation in South Africa

South Africa is often seen as one of the most successful recent instances of constitutional implementation: after decades of authoritarian, racially discriminatory rule under apartheid, its 1996 Constitution established a system of multi-party democracy and rights-based constitutionalism. In the first ten years of democracy, the African National Congress (ANC) government passed a range of transformational statutes that re-moralized the legal system and began to address the consequences of past economic exploitation and discrimination. From a new, more worker-friendly industrial relations regime, to land reform, and administrative justice, the Constitution’s vision for a just legal and political order was given concrete legislative form. To be sure, in the second decade of democracy, from around 2008, the ANC’s reputation as the driver of social and economic transformation began to decline, and the wheels have come off the South African democratic miracle to a certain extent. But the Constitution has not been substantially amended during this period, and it remains at the center of public discussion about how to restore the democratic system to health. This chapter suggests that one important explanation for this experience lies in the degree to which key actors – such as the South African Constitutional Court – have implemented constitutional transformation imperatives in ways that are sensitive to the broader political context, particularly the context of political (non-)competition or dominant-party democracy. Initially, the chapter argues, the Court adopted a restrained role that avoided direct confrontations with the ANC government, and sought to encourage legislative and executive responsibility for constitutional implementation (the first constitutional period). Over time, as the ANC became less committed to the constitutional project, the Court gradually assumed a more active role in encouraging political pluralism and accountability, both within the ANC and more broadly (the second constitutional period). Despite these efforts, the project of constitutional implementation in South Africa clearly remains incomplete. As a recent collection we edited documents, South Africa continues to grapple with problems of endemic corruption, the non-delivery of key services, and sexual and other violence. The ANC’s ongoing electoral dominance means that it is in many ways part of the problem rather than the solution. Entrenched in power for more than twenty years, the ANC has been able to take control of nominally independent state institutions and turn them to its not always benign purposes. Worse than this, overwhelming evidence is now emerging that the currently dominant faction within the ANC, with President Jacob Zuma at its head, has been involved in a systematically corrupt relationship with powerful business interests. This has disabled state organs from properly implementing constitutionally-mandated programs. In light of these developments, several scholars have criticized the Constitutional Court for being too slow to fashion robust constitutional doctrines to arrest the slide into corruption, clientelism and nepotism. While the Court’s switch from 2008 to a more circumspect attitude towards the ANC was a move in the right direction, this argument goes, the Court might have done more sooner to combat the pathologies that have emerged. In particular, taking its cue from the Colombian Constitutional Court and the Indian Supreme Court, the Court should have engaged in substantive constitutional policy analysis of the problems facing South Africa’s democracy, and developed the doctrines required to combat them. This chapter agrees with these critiques up to a point, but stresses the need for the Court to respect culturally-defined understandings of the law/politics boundary, and to work from within traditionally accepted modes of legal reasoning to develop the required doctrines. In particular, South Africa’s relatively formalist legal culture means that substantive constitutional policy analysis was more or less off the table as a legitimate doctrinal strategy. Rather, any successful transition by the Court from the first to the second constitutional period required the Court to find either clear textual authority or previously developed precedents for its interventions. Using that understanding as the appropriate measure, the Court, in the first constitutional period, arguably failed to create the necessary doctrinal markers – or forms of second-order ‘doctrinal deferral’ – that might have better supported its role in the second period and encouraged the kind of litigation that would have seen it intervening sooner and more robustly. While the Court did much to elaborate its role, a close analysis of its case law reveals that several opportunities were missed for the Court to have laid the groundwork for later interventions. The comparative insight emerging from this analysis is that successful constitutional implementation, by a court and other key institutions, will depend on a mix of sensitivity to the immediate political context, and the degree to which it may change over time, and a legal-doctrinal response that is not only flexible enough to accommodate such a change, but supports the litigation and doctrinal developments capable of underpinning the court’s changing role. The remainder of the chapter is divided into four parts. Part II sets out the background to the 1996 South African Constitution, and its substantive commitments, and the complex nature of any analysis focused on notions of forward-looking constitutional implementation. Part III explores the first and second periods of constitutional implementation in South Africa: the first, during which the Court tried to enlist the ANC as a partner in constitutional implementation, and the second, in which the Court has shifted to a more active role in constraining the ANC as the dominant political party while building pluralism. Part IV explores criticisms of the government's record of constitutional implementation and the Court's tardiness in responding to these failures. Part V suggests that for the transition from the first to the second constitutional period to have occurred more effectively, doctrinal markers for this transition were required, and that in many cases, markers of this kind were notably absent in cases in the first period. Part VI offers a brief conclusion about the complex relationship between constitutional politics and legal legitimacy in processes of constitutional implementation, and the role of courts as strategic actors attentive to notions of both political and legal legitimacy.