Academic journal article Northwestern Journal of International Human Rights

A Constitution at a Crossroads: A Conversation with the Chief Justice of the Constitutional Court of South Africa

Academic journal article Northwestern Journal of International Human Rights

A Constitution at a Crossroads: A Conversation with the Chief Justice of the Constitutional Court of South Africa

Article excerpt

"It doesn't matter how progressive the Constitution is. It cannot, just because it is operative, touch me, in my house to the point where I automatically begin to understand how my white brothers and sisters think and what I need to do to relate to them better. Some practical steps must be taken and we, as a nation, must also be encouraged to take them so that . . . [t]he 'ubuntu' or that spirit of sharing of humanity, of oneness, that the 1993 constitution provided for . . . [can] permeate across society."

-Chief Justice of the Republic of South Africa, Mogoeng Mogoeng, September 4, 2013.1

I. INTRODUCTION

Shortly before the first chapter of South Africa's grand constitutional democratic experiment was to draw to a close with the passing of the country's first black president and revered humanitarian, Nelson Mandela,2 the Chief Justice of the Constitutional Court of South Africa graciously granted the author an informal interview to discuss some of the most pressing challenges facing both the court and the country as it embarks on the next phase of its transformative endeavor. To that end, this article provides insight into the court's and country's current controversies, including institutional accountability, social transformation and affirmative action, and judicial selection, as well as the responsibilities of leading the judiciary of a progressive constitutional democracy in the South African regional community.

On October 11, 1996, two-and-a-half years after a remarkably peaceful and abrupt transition from its authoritative past, South Africans enacted a final Constitution designed to redress the country's past injustices.3 In order to secure the new democratic initiative, the framers enshrined the Constitution with a bill of twenty-seven modern rights. Unlike almost any other people on earth,4 South Africans have a constitutional right to privacy, housing, healthcare, and education.5 The government cannot discriminate against them on the basis of "race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."6 South African children have their own set of specific rights. The new supreme law provided that every child has the right to "basic nutrition, shelter, basic health care services and social services" and "to be protected from maltreatment, neglect, abuse or degradation."7 Commentators have characterized the text as among the most progressive ever constructed. Justice Ruth Bader Ginsburg suggested that the Egyptians, when drafting their post-Arab Spring Constitution in 2012, model it based on the South African Constitution rather than the United States' founding document. The Constitution of South Africa, she said, "was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary . . . It really is, I think, a great piece of work that was done."8

As if to press a "reset button" from an era of "parliamentary sovereignty" under apartheid,9 the autochthonous text installed a new apex court-the Constitutional Court10-with the power to invalidate any "law or conduct" inconsistent with the Constitution.11 The eleven justices,12 who, in theory,13 broadly reflect "the racial and gender composition of South Africa"14 are appointed to a non-renewable, twelve-year term or serve until he or she reaches the mandatory retirement age of seventy.15 Although the Chief Justice and his or her Deputy Chief Justice are the titular leaders of the Court, members of the bench consider and carry themselves as equals. Caseloads are divided evenly amongst the justices and consents and disagreements carry equal weight in the conference as well as in judgment. In an outward, public display that symbolizes this parity, justices sit on the same plane during hearings-with no one justice elevated above his or her peers-and, aside from the Chief Justice and Deputy Chief Justice who sit in the center, associate justices are randomly assigned different seats before each hearing. …

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