International Law and the South African Constitution

John Dugard ¹

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For over forty years, from 1948 to 1990, South Africa was in conflict with both the international community and international law. Apartheid, premised on race discrimination and the denial of human rights, was contrary both to the law of the UN Charter and to the norms of human rights, non-discrimination and self-determination generated by the post-World War II order. Although South Africa's foreign policy during this period was highly legalistic, it was the old law of state sovereignty and absolute respect for domestic jurisdiction that guided and shaped it. So it was that South Africa became a pariah state within the international community; a delinquent state in the context of the `new' international law of human rights.

Domestically, international law fared little better. Although treaties were incorporated into municipal law, in accordance with the common law dualist approach, and customary international law was treated as part of municipal law, unless inconsistent with legislation, the hostility of successive apartheid governments to the United Nations and international human rights conventions undoubtedly influenced the attitudes of legislators, judges and lawyers. International law received no constitutional recognition and was largely ignored by the courts and lawyers. While international law was applied by the courts in politically neutral matters, such as sovereign immunity and diplomatic privileges, it was generally viewed as an alien and hostile legal order.²

All this has changed. South Africa is now a democratic state, with a democratically elected Parliament. Human rights and racial equality are constitutionally protected, and there is a new attitude towards international law. Whereas international law was previously seen as a threat to the state, it is now viewed as one of the foundation pillars of the new democracy. In this article I shall describe the place of international law in the post-apartheid South African legal order.

I. The 1993 and 1996 Constitutions

In 1993 twenty-six political groups assembled at Kempton Park, near Johannesburg, to draft a constitution to bring an end to the apartheid legal order. As these groups were in most instances unelected, and simply reflected the political realities of the time, it was considered inappropriate to confer on them the power to draft a final constitution. Instead, the constitution which they fashioned in negotiations lasting some six months was to serve as an `interim' constitution, pending the drafting of a constitution by a democratically elected Constitutional Assembly. As the Interim Constitution represented a political compromise between rival groups, notably the National Party (which had ruled South Africa since 1948) and the African National Congress (outlawed from 1960 to 1990), it was agreed at Kempton Park that the `final' constitution would comply with thirty-four constitutional principles contained in a schedule to the Interim Constitution and that the Constitutional Court created by the 1993 Interim Constitution would be empowered to pronounce on the issue of compliance. This Interim Constitution approved at Kempton Park was duly endorsed by the last Apartheid Parliament and became the Constitution of the Republic of South Africa, Act 200 of 1993.

On 27 April 1994 the Interim Constitution came into effect to govern South Africa's first democratic elections.³ The Parliament thus elected served the dual role of legislature and Constitutional Assembly. From January 1995 to May 1996 the Constitutional Assembly met regularly to draft the `final' constitution in accordance with the thirty-four constitutional principles agreed upon at Kempton Park. A draft constitution was approved by the required two-thirds majority vote in the Constitutional Assembly on 8 May and forwarded to the Constitutional Court for certification. The Constitutional Court, however, found fault with a number of provisions in the draft constitution,⁴ on the grounds that they failed to comply with the constitutional principles contained in the Interim Constitution, and referred it back to the Constitutional Assembly. After these faults had been remedied by the Constitutional Assembly, the Constitutional Court gave its final approval to the Constitution on 4 December 1996.⁵ The new Constitution - the Constitution of the Republic of South Africa, Act 108 of 1996 - was signed into law by President Mandela on 10 December 1996. Appropriately, this ceremony took place on Human Rights Day at Sharpeville, the scene of the massacre of African demonstrators against the laws of apartheid in 1960.

The 1993 and 1996 constitutions are substantially similar. Both provide for a bicameral Parliament, with a lower house elected by voters on a national common roll, in accordance with proportional representation. The President is elected by the lower house, the National Assembly. Although South Africa is divided into nine provinces with important legislative and executive powers, the Republic of South Africa is not a federation. A Bill of Rights guarantees internationally recognized human rights and an eleven-person Constitutional Court is charged with the task of protecting the Constitution by means of judicial review.

Previous South African constitutions made no mention of the place of international law in the South African legal order. Both the 1993 and the 1996 constitutions remedy this omission. In this article I shall focus attention principally upon the international law provisions of the 1996 Constitution. Where the two constitutions differ, I shall draw attention to the divergence.

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1 Professor of Law, University of the Witwatersrand, Johannesburg; Director of the Research Centre for International Law, University of Cambridge 1995-1997. The author acted as a technical adviser to the Constitutional Assembly responsible for the drafting of the 1996 Constitution.

2 For a general picture of the place of international law in South Africa before 1994, see J. Dugard, International Law. A South African Perspective (1993).

3 For an account of the adoption of the Interim Constitution, see van Wyk, `Introduction to the South African Constitution', in D. van Wyk et al, Rights and Constitutionalism (1995) 131.

4 In re: Certification of the Constitution of the Republic of South Africa 1996 (4) South African Law Reports (hereinafter SA) 744 (CC).

5 Case CCT 37/96, unreported.

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