Academic journal article Journal on Ethnopolitics and Minority Issues in Europe : JEMIE

The Utility of Comparative Constitutional Law – the Practical Contribution by South Africa to a World Searching for Consistency in Democratic Practices

Academic journal article Journal on Ethnopolitics and Minority Issues in Europe : JEMIE

The Utility of Comparative Constitutional Law – the Practical Contribution by South Africa to a World Searching for Consistency in Democratic Practices

Article excerpt

Comparative constitutional law has, particularly since the fall of the Berlin Wall and the resultant democratization wave that swept the world, gained traction amongst jurists and political scientists on a scale arguably not seen previously. Constitutional law theorists and practitioners have always been fascinated by comparative constitutional experiences, albeit that the circumstances of each nation are so unique that sceptics can raise questions about the practical utility of comparative constitutional studies for purposes of drafting new constitutions or construing the text of existing constitutions.

Prior to the fall of the Berlin Wall the thrust of theoretical development and focus of comparative constitutional research was often biased towards the experiences of what could be described as the traditional 'western democracies' and their contribution to the rest of the world. During the past three decades the number of democratic case studies available for comparative analysis has burgeoned with many countries in Africa, Asia, central and eastern Europe, the Middle East and South America emerging as democracies or at least attempting to democratize. This is particularly evident in the ongoing international interest, especially by emerging democracies, in South Africa's experiences when it negotiated its constitution as well as the content of the constitution.1

The question that inevitably must be addressed by those attracted to constitutional comparisons is whether certain constitutional principles and mechanisms are becoming universal to the extent that they set a normative standard for institutional development by emerging democracies.

In this article an attempt is made to investigate how, within the sphere of the selected areas under consideration, comparative constitutional law is contributing to a growing universalization of certain constitutional norms. It is axiomatic that a constitution must, ideally speaking, be a product by a nation for a nation. At the same time, however, there is no need to re-invent the wheel each time a constitution is drawn up. General principles of representivity, accountability, judicial review, separation of powers, decentralization and respect for individual rights already have elements of universality to them.

This article investigates how South Africa benefitted from and in turn contributed to the development of international constitutional law in the fields of human rights and coalition government. It is proposed that (a) in the application of the 'right to life' South Africa has utilized international law and literature and in the process also contributed to the development of an international human rights norms that the death penalty is inconsistent with modern democratic governance and the protection of human rights; and (b) in the application of the consociational principle of 'grand coalition' in the government of national unity, South Africa highlighted the utility for deeply divided societies to explore mandatory coalitions in either transitional or permanent constitutional arrangements.

The two main themes to be explored in this article are: Firstly, universalization of human rights: abolition of the capital punishment in South Africa. And, secondly, Lijphart, the government of national unity in South Africa and consociational power-sharing in Northern Ireland and Kosovo.

1. Universalization of human rights: abolition of capital punishment in South Africa

South Africa, with its apartheid background, was one of the first countries after the fall of the Berlin wall that relied on universal developments in human rights and human rights instruments to develop the bills of rights in the 1993 (interim) and 1996 (final) constitutions (Van Wyk, 1994). The South African bill of rights drew substantially on international human rights instruments and on constitutions such as the Basic Law of Germany, the bill of rights in the USA and the bill of rights of Canada (Dugard in Van Wyk, 1994). …

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