Authorizing Subnational Constitutions in Transitional Federal States: South Africa, Democracy, and the KwaZulu-Natal Constitution

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ABSTRACT

Not all federal systems permit their constituent units to adopt constitutions. This Article considers whether, and under what circumstances, subnational constitutions tend to contribute to the volatility or stability of their respective federal systems. By examining the role that subnational constitutions played in South Africa's celebrated democratization, this Article observes that a transitional federal state can increase its flexibility and adaptability by merely authorizing subnational constitutions. The Article concludes that federal systems, particularly those undergoing fundamental change, can be better equipped to manage regime-threatening conflicts and perpetuate a democratic political culture if they permit constituent units to adopt constitutions.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. THE LEGAL STATUS OF PROVINCIAL CONSTITUTIONS
     IN SOUTH AFRICA
     A. The Provinces' Limited "Constitutional
        Space".
     B. The Western Cape Constitution
     C. Individual Rights and Provincial
        Constitutions
III. THE CONFLICT BETWEEN THE INKATHA FREEDOM
     PARTY AND THE AFRICAN NATIONAL CONGRESS
     A. The Historical Division between the ANC and
        the IFP
        1. The IFP's Genesis as an Ethnic
           Organization
        2. The ANC's Cross-Ethnic Ideology
        3. The 1979 Rift between the IFP and
           the ANC
     B. The Ideological Division between the ANC
        and the IFP
        1. The IFP's 1986 Indaba Constitution
        2. The 1992 KwaZulu Constitution
     C. The 1994 Election
 IV. THE 1996 KZN CONSTITUTION-MAKING PROCESS
     A. The National Catalyst for the KZN
        Constitution
     B. The Constitutional Negotiations
     C. The Content of the KZN Constitution and
        the Constitutional Court's Certification
        Judgment
  V. REGIME-THREATENING CONFLICTS AND SUBNATIONAL
     CONSTITUTIONS
     A. Managing Conflict by Increasing Political
        Flexibility at the National Level
     B. Managing Conflict by Providing Alternative
        Political Forums
     C. Mitigating Considerations
 VI. SUBNATIONAL CONSTITUTION-MAKING AND THE
     TRANSFORMATION OF POLITICAL CULTURE
     A. Liberal Democracy and the Realities of African
        Society
     B. The KZN Constitution and the Layered Political
        Identity of Zulu South Africans
     C. Political Socialization in Transitional African
        States
     D. Political Socialization and the KZN
        Constitution-Making Process
VII. CONCLUSION

I. INTRODUCTION

To make peace with an enemy one must work with that enemy, and that enemy becomes one's partner.

--Nelson Mandela (1)

Scholars of subnational constitutional law tend to focus on the significance of subnational constitutions as independent sources of law. (2) In the United States of America, for example, state constitutions are frequently celebrated as an alternative source of justiciable substantive rights. (3) Comparative studies also emphasize the substantive content of subnational constitutions, (4) usually focusing on obscure asymmetries between subnational units (5) or unique distributions of power between central and regional government. (6) That perspective is important. It is primarily a legal inquiry, however, aimed at drawing attention to subnational constitutions as alterative sources of law. (7)

Curiously, scholars have largely ignored the threshold question of whether particular federal systems should or should not authorize subnational constitutions. Despite the variety of arrangements that exist regarding the authority of subnational units to adopt constitutions, (8) few studies have investigated the circumstances under which those arrangements contribute to the stability or volatility of their respective federations.

Nevertheless, South Africa's remarkable transition from apartheid to democracy suggests that federal systems, particularly those experiencing fundamental political change, can benefit from merely authorizing subnational constitutions. …