The South African Constitutional Court and the Death Penalty: Whose Values?

The South African ConstitutionalCourt and the Death Penalty:Whose Values?

ELSA VAN HUYSSTEENDepartment of Sociology, University of the Witwatersrand, Johannesburg, SouthAfrica

Introduction

A central assumption of the sociology of law is that the study of law and thelegal system is essential in the process of understanding and explainingsociety as a whole. In the South African context, the changing role of thelegal system in the South African state, particularly the changing law–government relationship, has been a metaphor for social and politicalprocesses. We have seen a complete metamorphosis of the role of law inthe South African state; from parliamentary sovereignty to constitution-alism, and from a flexible and non-supreme constitution to an inflexibleand supreme constitution. This process has mirrored the transition fromautocratic, brutal and repressive government and polarized, intolerant andviolent social relations, to transparent, accountable and democraticgovernment and the possibility of the development of a more tolerant andhuman-rights-oriented culture.

This paper will examine critically the transformation from parliamentarysovereignty to constitutionalism of the law–government relationship in theSouth African state. Constitutionalism, as an institution of liberal demo-cratic ideology, is a relatively new element of the South African vision ofdemocracy, and its legitimacy and representivity cannot be taken forgranted. This will be investigated by examining the role of the Constitu-tional Court in the interpretation of the new South African Constitution.The trump card of the Court’s claim to legitimacy is that the Constitutionwas drafted by representatives of all the people of South Africa and that itis therefore an expression of the general will. This paper will focus mainlyon one flaw in this argument; the interpretation of the Constitution, andparticularly of its Chapter 3 (the Bill of Rights), can never be a ‘neutral’ or

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‘objective’ process, and each judge on the Constitutional Court will employan own particular set of values in terms of which to interpret and enforcethe Constitution. In this sense, the Constitution becomes a product of thevalues employed by individual judges in the process of interpretation, andnot an expression of the will of the South African people.

Constitutionalism may well be the most effective way of organizing anddistributing power in the context of the heterogeneous and strife-tornSouth African society, but in order that the Court be accepted as shield andsword for all, it will have to employ different legitimation strategies. Thelegitimacy and representivity of the Court in the new South Africandemocracy can be established by investigating the value systems employedby the judges in the process of interpretation, and the influence of theoften-competing requirements of autonomy and accountability. TheCourt’s June 1995 judgement on the constitutionality of the death penalty(CCT/3/94) will be used in order to illustrate the dilemmas ofinterpretation and the Court’s uneasy role in the new democraticdispensation.

Law, State and Democracy

The legal system has, in contemporary society, become a centrallyimportant institution of the state (Poulantzas 1978: 77; Hall & Ikenberry1989: 2). This development can best be understood by focusing on the roleof power both in the state and the legal system, and particularly onstrategies for the legitimation of state power. Turk (1978: 218) argues thatvirtually all the resources which form the basis of power in contemporarysociety are controlled by means of law, including political resources. Heasserts that law is a centrally important resource of political power, as itcontrols decision-making processes and is “an ultimate support forinstitutional normative structures” (Turk 1978: 218–219). However, morethan merely providing support for institutional normative structures, lawand the legal system also serve to legitimise state power, often by placinglegal limits on the exercise of state power. To Weber (1984: 34),domination in modern society is legitimated by appealing to legality; “abelief in the validity of legal statute” and “rationally created rules”. Thelegal system is clearly a centrally important institution in the contemporarystate as it has become fundamental to the legitimate exercise of power incontemporary society.

One way of understanding the role of the legal system in a state is toinvestigate the relationship between the legal system and other stateinstitutions, particularly the government, and this is determined by theconstitution of a state. Okoth-Ogendo (1991: 5) conceptualizes a constitu-tion as a “power map”, which is concerned with the “creation, distribution,

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exercise, legitimational effects and reproduction of power”, and this powermap will determine the distribution of power by inter alia establishing aparticular type of relationship between the legal system and the govern-ment. For the purposes of this discussion, two categories of thisrelationship can be identified; ‘parliamentary sovereignty’ and ‘constitu-tionalism’. In a law–government relationship of parliamentary sovereignty,the legal system is subordinate to government. Under this system, “whatParliament says is law, without the need to offer justification to the courts”(Mureinik 1994: 32). The courts simply apply laws made by thegovernment; judges discover law, they do not invent it (Dworkin 1986: 5).Nonet & Selznick (1978: 34, 39) argue that this type of relationshipbetween the legal system and government in a society is often typical of asystem of “repressive law” where “the hallmark of law becomes itsassociation with, and subordination to, the requirements of government”,and courts and legal officials are “pliable instruments of the government inpower”. In contrast to this, constitutionalism means that government issubordinate to law and the legal system, particularly to a constitution asinterpreted and enforced by the legal system. Central to all definitions ofconstitutionalism is the idea that it refers to a system where the exercise ofpower by the government is strictly limited by the constitution (Hayek1960: 178; Olivier 1994: 19–20), and such limitation is enforced by anindependent and supreme judiciary. In such a system, the constitution willtherefore be a powerful document, which means that it will be inflexible ordifficult to amend (Nolutshungu 1991: 93) and supreme (the highest lawof the land); and it will contain explicit rules about the source and exerciseof governmental power (Hayek 1960: 178–179).

The two categories of parliamentary sovereignty and constitutionalismclearly represent two strongly contrasting forms of the relationshipbetween the legal system and government: in the former, the constitutionor power map is seen as one which facilitates the exercise of state power;and in the latter, the constitution places limits on the exercise of suchpower (Okoth-Ogendo 1991: 7). This analysis of the role of the legal systemin the state can be expanded by adding the factor of democracy. The powermap will also establish the role of law and the legal system in the operationof democracy, and this will in turn be determined by the reigningdemocratic ideology. Democracy is, after all, a particular way of organizingthe exercise of power, and the constitution is the way in which thisorganization is formalized. For the purposes of this discussion, two broadcategories of democratic ideology will be identified; liberal democraticideology and popular democratic ideology (Shivji 1991: 32–33).

Liberal democratic ideology can broadly be described as individualisticand aimed at limiting the power of the state (Hagopian 1985: 19–22), whilepopular democratic ideology is collectivistic and aimed at eradicating

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inequality, a function seen as best performed by a powerful state(Hagopian 1985: 22–25), although contemporary theorists of democracyin Africa emphasize the importance of the role of civil society in successfuldemocratization and the consolidation of democracy (see, for example,Fine 1992; Mamdani 1995). Liberal democratic ideology demands that theconstitution places limits on the exercise of state power, while populardemocratic ideology demands that the constitution facilitates the exerciseof state power in the pursuit of eradicating inequality. In the case of theUnited States, for example, the constitution is often described as anattempt to entrench elite rights to private property and free enterprise,and in this way to limit the power of a democratically elected governmentby protecting the rights of numerical minorities against it (Parenti 1983:72), while the constitutions of states newly emerged from oppressivecolonial rule are often aimed at providing the government with the powerto eradicate inequality, and therefore do not protect the rights of elites(e.g. property owners) against the state (Okoth-Ogendo 1991: 11;Chaskalson 1993: 2).

Constitutionalism is therefore more likely in the context of a liberaldemocracy than in a popular democracy, as the aims of popular democracyseem to conflict with constitutional supremacy over government. Thispaper will argue that constitutionalism is not inherently incompatible withpopular democratic ideology, as long as it can be disentangled, in practice,from its reputation as an institution of liberal democracy aimed atprotecting elite interests from the claims of the masses. Popular democraticideology does not demand that parliament is supreme, as there are noguarantees that parliament will in practice be the voice of the people, butthat the state sets about doing what the disadvantaged majority wants it todo, which is to eradicate inequality and expand popular participation inpolicy formation. This process can be enhanced by providing anindependent judiciary with a sharper set of teeth.

The site for the reconciliation of constitutionalism with the aims ofpopular democracy is the concept of human rights. Mureinik (1994: 32)argues that for a constitution to be effective in establishing and protectingdemocracy, it should have a Bill of Rights as its “chief strut”. Such a Bill ofRights protects fundamental human rights and in this way establishes therespect for life and dignity and tolerance of diversity essential to ademocratic culture, and provides the rights to freedom of expression, freeand fair political activity and freedom of association which are essential tolegitimate opposition and truly competitive elections. This is, however, notenough. Popular democratic ideology demands, more than civil andpolitical rights, a government which can effect the redistribution ofresources which is often the focus of struggles which establish populardemocracies, which means that a representative and legitimate Bill of


Rights in the context of a popular democracy has to include social andeconomic rights. As Liebenberg (1995: 3) points out, “there is clearly noautomatic relationship between legal rights and social benefit to the mostdisadvantaged in society”, but the opportunities for such groups to obtainredress for social and economic disadvantage can be maximized byproviding a legal channel in addition to the political. A justiciable Bill ofRights which includes social and economic rights can therefore in effectexpand the opportunities for political participation by disadvantagedgroups as well as provide a forum where the “justifiability of governmentaction or inaction to address the social and economic priorities ofdisadvantaged groups can be tested“ (Liebenberg 1995: 3). In this way,constitutionalism can also provide opportunities for the expanded role ofcivil society in democratic processes which is required by contemporarypopular democratic ideology (Fine 1992).

Law, State and Democracy in South Africa

South Africa under apartheid was an authoritarian and repressive societycharacterized by extreme polarization and violence, and law and the legalsystem played an important role in the maintenance of oppression and therepression of resistance. The grand policy of apartheid was executedlargely by means of legislation (e.g. the Group Areas Act 41 of 1951 and thePopulation Registration Act 30 of 1951), and resistance was suppressed bymeans of legislation like the Public Safety Act 3 of 1953, as well as by meansof strategies like criminalization and much-publicised political trials(Suttner 1984: 64). The most fundamental element of this process was,however, the principle of parliamentary sovereignty. The law–governmentrelationship in the South African state at the time was characterized bycomplete subordination of the legal system to government. This principlewas fundamental to this era of oppression, as it meant that the courts couldnot test any legislation enacted by parliament and had to apply suchlegislation unquestioningly, which enabled the state to “ride roughshodover individual liberty without fear of judicial obstruction” (Dugard inHund & Van der Merwe 1986: 20, 23). During the 1980s, the principle ofparliamentary sovereignty was, however, challenged by many judges whotested and found wanting the validity of certain emergency regulations(Corder 1987: 103–104), and this critical voice emerged in tandem withthe crumbling of the apartheid regime.

The process of constitutional negotiations between the various politicalparties which started during this era resulted in the adoption of theInterim Constitution and South Africa’s first democratic elections. Thelaw–government relationship reflected this process of fundamental trans-formation, as it underwent its own metamorphosis. The negotiating parties


had settled on a system of constitutionalism, and this meant thatgovernment had now become subordinate to the legal system in the shapeof a newly established Constitutional Court which could test all govern-mental actions and legislation.

Nolutshungu (1991) analyses the development of the idea of constitu-tionalism in the national liberation movement in South Africa. He arguesthat this movement always encompassed the ideal that “liberation mustlead to a new constitution that transfers power from the ruling oligarchy tothe people at large, or that extends citizenship and political rights from theminority to all members of the population”, and that will provide andprotect fundamental human rights. However, the context of these rightsand the mechanisms by which they will be protected were not the subjectsof “elaborate debate” (Nolutshungu 1991: 92). Furthermore, although thecommitment to fundamental rights was very strong, the idea of constitu-tionalism, defined as the idea that the constitution itself, “rather thanpolitical arrangements, behaviour and culture”, will ultimately protectthese fundamental rights, was not one “easily found in the discourse of theSouth African liberation movement” (Nolutshungu 1991: 93–94). Davis(1987: 224–225) argues that as constitutionalism is seen as an importantelement of liberal democratic ideology, it was met with considerablesuspicion in the popular or socialist democratic ideology of the liberationmovement. The dilemma discussed in an earlier section therefore arisesagain in the South African context in particular: “can it not be argued thata body that has not been elected, and is not otherwise politicallyresponsible to an electorate, is undermining democracy by telling ademocratically elected body what it can and cannot do?” (Davis 1991:462–463).

Davis (1991: 462), however, also advances the argument put forwardearlier in this paper, namely that democracy should be seen as more thanjust a right to vote; a democratic South Africa also means attainingsubstantive equality and freedom which can be protected from abuse byothers, particularly by government. This is, of course, a belief central topopular democracy. And, as argued earlier, this is the basis for easing thetension between constitutionalism, as an institution of liberal democracy,and the aspirations of popular democracy. Sachs (1992: 9–10) argues thatthe “conservative” idea of internationally accepted concepts of humanrights can be transformative in South Africa, as it can provide a way to“substantial social, economic and political advance by the majority”. It alsoprevents “too much concentration of power in too few hands” (Sachs 1992:ix), an important motivation for those parties in the negotiating processwho had felt the brutal effects of such a concentration of power. A Bill ofRights which guarantees all three generations of rights, i.e. political andcivil rights, social, economic and cultural rights, and rights to development


and of minorities, can ensure the development and protection of a humanrights culture fundamental to a democratic society, guarantee theconditions for truly democratic political activity, and facilitate theattainment of substantive race, class and gender equality. The only way inwhich such a Bill of Rights can survive is by establishing a law–governmentrelationship characterized by constitutionalism, as government, which isafter all a body constituted for the purpose of exercising power, cannot bethe judge of whether its own actions and legislation conform to a Bill ofRights (Didcott 1988: 53). This discussion indicates the potential forreconciling constitutionalism with the aims of popular democracy, and inthis way facilitating the acceptance of the Constitutional Court by themajority of South Africans. The solution is, however, not quite as simple asthat. As pointed out earlier, setting up the Bill of Rights and theConstitutional Court only provides form, and the substance of the Bill ofRights lies in its interpretation. As Parenti (1983) and other commentatorson the U.S. Supreme Court have noted, a Bill of Rights can all too easilybecome like the Bible, which “the devil himself can quote … for his ownpurposes” (Parenti 1983: 307). The South African Bill of Rights can only bea legitimate representative of the aspirations of the majority of SouthAfricans if it is interpreted by the Court in a way which makes it so.

The Constitutional Court has been operational for some time, and it hasbeen faced with several controversial decisions. The tension betweenpopular democracy and constitutionalism described above has beendemonstrated clearly in the aftermath of a particularly controversialdecision in which the Court abolished the death penalty, apparentlyagainst the will of the majority, and on the basis of the Bill of Rightscontained in the Constitution. The judgement handed down by all 11judges reflects their sensitivity to the tension between their role and therequirements of the newly established democratic dispensation, as well asthe way in which they grapple with popular democratic ideology, and ittherefore provides an illustration of this debate, although it does not givean indication of the judges’ stand on socio-economic issues.

The South African Constitution and its Interpretation

The reigning South African Constitution is an Interim Constitution whichwas the product of extended multi-party negotiations. It was formallyadopted by the then-ruling tricameral Parliament on 22 December 1993,and came into operation on 27 April 1994, the day of the first democraticelection in South Africa. In terms of Section 4 of the Constitution, thisConstitution will be the “supreme law of the Republic and any law or actinconsistent with its provisions shall… be of no force and effect to theextent of the inconsistency”.


The preamble of the Constitution and its “unique” postscript (Marcus1994: 101) express the spirit of the Constitution. The preamble states thatthe new Constitution arises out of “a need to create a new order… in whichthere is equality between men and women and people of all races so thatall citizens shall be able to enjoy and exercise their fundamental rights andfreedoms”. The postscript emphasizes that the Constitution “provides ahistoric bridge between the past of a deeply divided society characterizedby strife, conflict, untold suffering and injustice, and a future founded onthe recognition of human rights, democracy and peaceful co-existence anddevelopment opportunities for all South Africans, irrespective of colour,race, class, belief or sex”. It also establishes as the goals of the newConstitution national unity, peace, reconstruction, reconciliation and“ubuntu”.

The first fundamental right listed in the Bill of Rights (Chapter 3) is theright to equality and can be described as the grundnorm of the Constitution,which reflects the fundamental concern of the negotiating parties to rectifythe South African past of gross institutionalized discrimination. The otherrights include first-, second- and third-generation rights which range fromthe rights to life and dignity, freedom of expression and movement, fairlabour practices, and education, to the right to an environment notdetrimental to well-being. Chapter 3 also contains a “limitation clause” inSection 33, which specifies the circumstances under which these funda-mental rights may be limited. The task of the Constitutional Court, interms of Section 98 of the Constitution, is to protect and enforce theprovisions of the Constitution, particularly the fundamental rights, againstviolations from all quarters. This means that it is empowered to test any law,act or regulation, or action of any organ of the state, against the provisionsof the Constitution, particularly the Bill of Rights. In order to judge anydispute in terms of the Constitution, the Court will have to interpret itsprovisions. Section 35 of the Constitution embodies an interpretationclause which directs the Court to follow a particular approach tointerpretation, most notably that it has to, in the process of interpretation,“promote the values of an open and democratic society based on freedomand equality”. The principles of constitutional interpretation are, however,“not cast in stone” (Marcus 1994: 92), and even the directive provided inSection 35 is itself capable of different interpretations as it encompassesintangible values.

A central argument of this paper is that although the process of legalinterpretation is often assumed to be precise and objective, it is a processinfluenced by several external factors, including the values, attitudes andideologies of every judge. This is particularly true in the case ofconstitutional interpretation, as constitutional text is often very vague(Sunstein 1993: 93), and constitutional disputes present judges with “policy


choices which are often of a profoundly political character” (Marcus 1994:92).

Dworkin (1986: 52) argues that interpretation is a “constructive” process.He defines “constructive interpretation” as a “matter of imposing purposeon an object or practice in order to make of it the best possible exampleof the form or genre to which it is taken to belong”. This does not meanthat an interpreter can make of an object or practice anything s/he wantsit to be, because the history or shape of it “constrains the availableinterpretations”; constructive interpretation is “a matter of interactionbetween purpose and object”. Applied to a Bill of Rights, this means thatan interpreter of the text will, within the constraints of the history(including the social context) and shape (including the contents andpurpose) of the document, impose on it a purpose in order to make of itthe best possible example of this type of document. This means thatinterpretation will depend on the interpreter’s view of the history andsocial context of the Bill of Rights, the particular view of the shape of it,and, very importantly, the view of what constitutes the best example of thistype of document. This view of the process of constitutional interpretationmakes it clear that factors external to the constitutional text itself have afundamental impact on the result of interpretation. Dworkin does,however, underplay the extent to which the interpreter’s personal valuesand convictions will impact on the process of interpretation, and insteadfocuses on the role which a judge’s legal values will play. These values dohave an important impact on the process of interpretation, but there areother equally important values which are employed by judges.

The central assumption of this argument is therefore that a constitutioncan only be interpreted with reference to certain principles external to theconstitution itself, and that these principles are created by the judgesthemselves (Sunstein 1993: 94). An important focus of this paper is thebasis on which judges create these principles of constitutional inter-pretation. The analysis is critical in the sense that it investigates the oftenhidden or denied external factors which impact on legal and, particularly,constitutional interpretation. It is not, however, critical in the sense that itdisapproves of this element of constitutional interpretation. On thecontrary, it is assumed that constitutional interpretation can only be acreative and dynamic process on this basis, as “the words of theConstitution tell us much less than we need to know” (Sunstein 1993: 94),and a strictly literal interpretation will not do justice to the spirit of aconstitution (Marcus 1994: 94). Acknowledgement and critical analysis ofthe factors that impact on the process of interpretation is, however,essential, as a pretension to “neutrality” can be dangerous in the sense thatit could facilitate the undetected operation of a hidden agenda and “on thewhole, those lawyers who are unconscious of their legal ideology are apt to


do more harm than their conscious colleagues” (Friedman in Barrie 1989:518).

It is therefore important to identify the external factors that impact onconstitutional interpretation. These factors impact on interpretation bothin the process of the judge constructing a personal set of principles ofconstitutional interpretation, and in the process of applying that set ofprinciples to each case. This argument does not suggest that theseprocesses are arbitrary, and it does not suggest that constitutionalinterpretation is necessarily subject to an individual judge’s personal whim,tastes and political opinions [although a commentator like Parenti (1983)would argue that it often is the case]. It does, however, indicate an elementof constitutionalism which militates fundamentally against its claims tolegitimacy. In the South African context, it means that a ConstitutionalCourt of which the members are not representative of South Africans in allwalks of life (and their values), has a thin claim to representivity andlegitimacy in the process of regulating the democratically electedgovernment of the day.

Nicholson (1992: 52) calls the values, attitudes and opinions thatinfluence judicial decision-making ‘ideology’. The term ‘values’ willinstead be used in this paper in order to indicate ideas held by individualjudges about “what is desirable, proper, good or bad” (Giddens 1989: 732).Nicholson (1992: 53) classifies these values into three categories; “societal,legal and judicial”. These categories are “not watertight” and considerableoverlap and mutual influence occurs (Nicholson 1992: 53). It is, however,a useful analytical tool when investigating the values that influence anindividual judge’s interpretation of, for example, a constitution. Thesevalues are, of course, products of the background and training of eachjudge, and the aim is therefore not to construct a psychological profile ofeach judge, but rather to indicate how each judge is to some extent arepresentative of a particular set of values and interests.

These categories can now be applied to an analysis of the process of theinterpretation of the South African Constitution by the judges of theConstitutional Court. Judges are instructed by the Constitution (in Section35) to apply certain values in the process of interpretation, but individualjudges will understand these concepts differently, and each judge’sunderstanding will be determined by his/her values. What does ‘freedom’mean? And ‘ubuntu’? The first category of values which will impact on ajudge’s interpretation is ‘societal’ values. These values include ideas aboutwhat exactly concepts like democracy, freedom and equality entail. Ajudge’s notion of ‘democracy’, for example, can have a fundamentalimpact on the process of interpretation, as it will determine what the judgeconsiders to be a reasonable and justifiable limitation on a right in ademocratic society. Similarly, a judge’s notion of ‘equality’ will determine


his or her judgement on issues of affirmative action or quota systems. Thelimitations clause also provides that a right cannot be limited in such a waythat the ‘essential content’ of the right in question is negated. Woolman(1994: 74) argues that the essential content of a right is negated when thelimitation on the right makes it “impossible for the right to serve itsintended social function”, and this is clearly once again a judgement whichwill depend on the judge’s view of the “intended social function” of aparticular right, for example the right to freedom of expression. If a judgesees the social function of this right as promoting a forum of ideas in orderto uplift society, he/she may well not tolerate pornography.

Nicholson’s second category focuses on a judge’s values about law andthe legal system. Nicholson (1992: 59) argues that the majority of SouthAfrican judges have Western liberal or bourgeois legal values, which stress“justice, fairness, equality, human dignity and personal freedom, whilepresenting law and the courts as the champion of the individual against thestate”. These values have, of course, to a large extent been incorporatedinto the Constitution, and the extent to which each judge adheres to theselegal values will certainly influence the process of interpretation. Whenconsidering a limitation of the right to freedom of expression in theinterest of the state, for example, a judge who is a passionate proponent ofthese liberal legal values will tend to require a greater degree ofjustification from the state than another.

Nicholson’s third category refers to values about the role and functionsof judges in the legal system and in society, and this also includes a judge’stheory of interpretation. This set of values will determine whether a judgeemploys a literal approach to the interpretation of legislation, whichusually means assigning minimum relevance and importance to the socialcontext of legislation, or a more contextual or purposive approach whichenables a judge to consider the purpose or context of legislation. Certainjudges believe in considering a wide range of sources and authority in theprocess of interpretation, including factors like the history, social context,purpose and spirit of legislation, and in this way can come to creativeconclusions. In the context of the Constitutional Court’s interpretation ofthe constitutional text, these values will have an important impact on howeach individual judge interprets the Constitution. The Constitution doesprescribe an explicitly contextual and purposive approach to inter-pretation, and this will have a profound impact on an individual judge’sinterpretation of the text, but individual judicial values will still have aninfluence.

This discussion creates the impression that the process of interpretationof the South African Constitution will be determined entirely by theindividual judges’ societal, legal and judicial values. However, as was


pointed out earlier, the judges of the Constitutional Court have demon-strated a sensitivity to the tension between their role and the requirementsof the new democratic dispensation, and this will also have an influence onthe principles of constitutional interpretation which they will construct aswell as the way in which they apply these in each case. In this process, theywill have to face the competing requirements of accountability andautonomy: “too much accountability and the [Court] becomes the tool ofthe democratic majority; too much autonomy and the [Court] loses thedemocratic legitimacy necessary to justify its powerful role” (Nicholson1992: 70).

This revisits the tension between constitutionalism and popular democ-racy discussed earlier. It was argued that it is the concept of human rightsthat ensure and protect the circumstances essential to democracy and thathave to be protected from government’s abuse of power, which eases thistension, but the way in which these rights are interpreted by theConstitutional Court is also an essential factor. A completely autonomousCourt will simply interpret the Constitution in terms of its principles andwith regard only to factors connected to it, like its history and spirit. Thiswill result in the desired end of protecting individual rights against abuseat all costs, but if the Court’s decisions continuously contradict the will ofthe majority and no attempt at justification is made, the Court will lose thelegitimacy so desperately needed if it is to play any role in the consolidationof democracy in South Africa. Mureinik (1994: 32) argues that the newConstitution provides the basis for a new “culture of justification — aculture in which every exercise of power is expected to be justified”. He isreferring to exercise of government power, but the same can be argued inthe case of the Court’s exercise of its power. A measure of accountability isessential if the Court is to be seen as legitimate in a new democraticdispensation.

Cameron (1991: 183) points out that “there are nuances to accountabil-ity: in the democratic sense one cannot simply regard accountability assubjugation to the popular will from moment to moment”. If accountabilityon the part of the Constitutional Court does not mean handing downjudgements that faithfully reflect the will of the majority, what does itmean? How can it be ensured? Dugard (1991: 180–181) emphasizes theimportance of public scrutiny and criticism of judicial decision-making,and argues that the media and the legal profession should play a leadingrole in this process. To this end, it is important that judgements are wellmotivated and well publicised. Nicholson (1992: 71) argues that theConstitutional Court should, in the process of making a decision, considerthe evidence of non-legal experts like social scientists on the values andattitudes of the public, as well as hear the arguments which arerepresentative of public opinion and “listen to the views of those likely to


be affected by their decisions”. Finally, Cameron (1991: 196–197) believesthat the Court should maintain “a constant sensitivity to the overall goalswhich the [Constitution] is designed to serve”, which means that the Courtcan be accountable to the people of South Africa by promoting theConstitutional goal of creating an open and democratic society based onfreedom and equality. This argument again does not take into account thepossibility that the judges’ interpretation of such a society may well differsubstantially from that of the majority of South Africans.

An Illustration: The Death Penalty

The dilemmas of interpretation faced by the Constitutional Court and theCourt’s uneasy role in the new democratic dispensation are vividlyillustrated by the Court’s June 1995 judgement on the constitutionality ofthe death penalty.

Social surveys conducted on the issue have indicated that the majority ofSouth Africans are in favour of the death penalty. One example, reportedin The Sunday Times (11 June 1995: 5), indicates that “more than 80% ofwhites and more than 50% of blacks in metropolitan areas” favoured thedeath penalty. A survey of the newspapers in the weeks after argument washeard by the Court on the case and in the weeks after the judgement washanded down, also gives an indication of the voracity of the support for theretention, and now reinstatement of the death penalty (The Star, 15February 1995 and The Sunday Times, 11 June 1995). The judgementhanded down by the Constitutional Court abolishes the death penalty, butthe judgement does demonstrate a sensitivity to the fact that this decisioncontradicts the will of the majority. The following discussion will investigatethe values employed by the judges in making their decision andformulating their arguments, as well as the way in which they deal with thetension between their role and the requirements of popular democracy.

The President of the Court, Justice Chaskalson, wrote a comprehensivejudgement (CCT/3/94), while the other 10 judges wrote shorter concur-ring judgements. This discussion will focus on his judgement as representa-tive of the others, and will only refer to the others where there is asubstantive difference in interpretation or emphasis. Chaskalson P startshis judgement with an overview of the provisions of the Constitution whichhe deems to be relevant to the process of interpretation, as well as anoutline of his approach to interpretation. In this regard, he refers to thesupremacy of the Constitution, and quotes from the postscript tosubstantiate his view that the Constitution is aimed at establishing a new,democratic and human rights-oriented society. He also indicates that thebest approach to interpretation is one which is “generous” and “purpo-sive”, “gives expression to the underlying values of the Constitution”, and


takes into account the history and context of the Constitution (CCT/3/94at 4–7). This gives a clear indication of his judicial values and extent towhich they will impact on his interpretation of the Constitution. He clearlybelieves that the role of the judge in such a matter is not to merely literallyinterpret the text of the Constitution, but to have regard to a wide rangeof external factors, including the history, context, spirit and goals of theConstitution, and he provides substantial evidence that this is aninternationally accepted approach to interpretation (CCT/3/94 at 10–14).Both Justices Mahomed (CCT/3/94 at 174) and O’Regan (CCT/3/94 at211) echo this view when they argue that both the memory of the violent,oppressive, authoritarian and racist past of the South African society, andthe vision of a new, democratic and egalitarian society embodied in theConstitution, should inform the process of interpretation of the Constitu-tion. Chaskalson P then proceeds to argue the Court’s jurisdiction in thismanner, justifying the fact that the Court, and not Parliament, as an electedbody, will decide on this issue. He points out that although the deathpenalty was the subject of considerable debate during the drafting of theConstitution, the authors of the document expressly did not make specificprovision for this issue in the text, and he argues that this is a clearindication that the intention was to leave this decision to the interpretersof the Constitution. He also emphasizes that the Constitution was theproduct of extensive multi-party negotiations, in order to indicate thedemocratic nature of the process that led to the final document, andperhaps to argue for the idea that the Constitutional Court, in this indirectway, does have a democratic mandate for its decisions. Finally, heemphasizes the need for the Court to approach this task with courage andconviction, as shrinking from it would mean a return to parliamentarysovereignty (CCT/3/94 at 12–18). It is clear that he is aware of the tensionbetween the role of the Court and the aims of popular democracy, andbetween the competing requirements of autonomy and accountability, andthat he has attempted to address this tension.

On the question of the approach to constitutional interpretation, JusticeLanga (CCT/3/94 at 158–162) argues that factors external to theConstitution are of great importance in the process of interpretation, asthe Constitution itself is very much a product of its history and socialcontext. In this regard, Langa J refers specifically to the South Africanhistory of violence, retaliation and vengeance, and argues that the SouthAfrican state, by reason of its “role in the conflicts of the past” and its“punishments which did not testify to a high regard for the dignity of theperson and the value of every human life”, became part of thedegeneration of South African society into one where “respect for life andfor the inherent dignity of every person became the main casualties”. Hebelieves that the new Constitution provides a framework “in which a new


culture must develop and take root”, and that this culture is one based onthe values of a “more mature society”, which include a respect for humanlife and dignity. In this regard, he lays great emphasis on the concept of‘ubuntu’, the achievement of which is named in the postscript of theConstitution as one of its goals. Justices Langa (CCT/3/94 at 161–162),Madala (CCT/3/94 at 166–167), and Mokgoro (CCT/3/94 at 202–203),all emphasize the importance of this concept as a source of authority forthe interpretation of the Constitution, as it is seen as a value fundamentalto the Constitution. Madala J (CCT/3/94 at 167) believes that the conceptof ubuntu “carries in it the ideas of humaneness, social justice andfairness”, and these judges argue that this is a value fundamental to Africansociety which has been incorporated into the Constitution and whichshould therefore have an important influence on the process of inter-pretation. This argument can also be seen as a rebuke to the argument,advanced by the retentionists, that ours is a society not yet ‘developed’enough to abolish the death penalty (CCT/3/94 at 82). Chaskalson P dealswith the issue of public opinion in some detail, as it was an important strutof the retentionist argument. He argues that “public opinion may havesome relevance to the enquiry”, but if this were to be the decisive factor,“there would be no need for constitutional adjudication”, and we wouldhave returned to a system of parlimentary sovereignty and retreated fromthe new order established by the Constitution. He points out that thereason for establishing a system of constitutionalism was to “protect therights of minorities and those who cannot protect their rights adequatelythrough the democratic process”, including the “social outcasts and themarginalized people of our society”. He also argues that only if there is “awillingness to protect the worst and the weakest amongst us”, all of us canbe ”secure that our own rights will be protected”. If the government werethe judge of their own actions, there would be no need for a Constitution(CCT/3/94 at 60–63). Chaskalson P here reveals a view of democracy as asystem where the rights of individuals and minorities are protected againstthe will of the majority, and which is based on a particular set of values.

All the judges addressed this issue in their judgements, and allconcluded that the autonomy of the judges of the Court from the will ofthe majority or public opinion is fundamental to the successful operationof the Court. The reasons individual judges give for this conclusion do,however, differ subtly. Firstly, Justice Kriegler’s brief judgement insists thatno one’s opinion, not even his own, matters, as the task of the Court is todetermine “what the Constitution says”, and that the decision should notbe made on the basis of morals, ethics or philosophy, but on the basis of law(CCT/3/94 at 150). This argument is echoed by Justice Madala, whoasserts that it is “not necessary or even desirable to canvass public opinion


on constitutional matters”, as these have to be decided on the basis of theConstitution itself (CCT/3/94 at 173).

Secondly, in subtle contrast to the first, other judges, like Chaskalson Pand Mokgoro J (CCT/3/94 at 201) believe that a central element of aconstitutional democracy is the protection of minorities and the weak fromthe will of the majority, and that merely reflecting the will of the majorityin all decisions would pervert this element of democracy.

Finally, Justice Sachs’ (CCT/3/94 at 229) argument has importantimplications for the autonomy/accountability dilemma. He believes thatjudges should “take account of the traditions, beliefs and values of allsectors of South African society”, but argues that the Constitution alreadyreflects these values, as it emerged from “an inclusive process in which theoverwhelming majority were represented”. On this basis, the judges of theConstitutional Court have a duty to interpret the Constitution on the basisof the values enshrined in the Constitution without regard to transientmajority opinion.

The issue of public opinion is also raised by Chaskalson P in hisdiscussion of his decision that the death penalty is cruel, inhuman anddegrading punishment [prohibited by Section 11(2) of the Constitution].He rejects the Attorney General’s argument (CCT/3/94 at 60–61) that thisdecision must be based on the community’s view of what cruel, inhumanand degrading punishment entails, and instead argues that this must beevaluated within the meaning of the relevant section [11(2)] of theConstitution (CCT/3/94 at 19). Whether this can ever be establishedpurely in the constitutional sense of these words is, however, debatable. Itappears to be a decision which will inevitably be determined by theindividual judge’s values. In this appropriate in the context of anaccountable Court in a democratic dispensation? The answer to this lies inthe values assumed to be the foundation of democracy. In the context ofChaskalson’s view of democracy, the practice of cruel, inhuman anddegrading punishment (defined in the widest possible sense) would rendera society undemocratic as it would negate the values essential to ademocracy. Justice Didcott (CCT/3/94 at 122–123) addresses this issuemore explicitly. He argues that a decision on whether a punishment iscruel, inhuman and degrading will always be a value judgement, but pointsout that the Constitution itself does provide guidance as to the values thatcan be used in this judgement. He believes that the Constitution isanimated by an “altruistic and humanitarian philosophy” which are thenorms and criteria against which these kinds of issues can be measured,and that interpretation should be true to “the civilised, humane andcompassionate society to which the nation aspires and has constitutionallypledged itself (CCT/3/94 at 136). In this way, while Didcott clearly rejectsbowing to majority opinion, he indicates that the Court can be seen as


accountable to the will of the people when it is faithful to the valuesincorporated into the Constitution drafted by the people’s representatives.Justice Kentridge echoes this argument in his judgement (CCT/3/94 at143–144). Justice Mahomed (CCT/3/94 at 174) also argues that theConstitution articulates “the shared aspirations of a nation” and commitsthat nation to a new and dramatically different future, and Justice O’Regan(CCT/3/94 at 222) sees the Constitution as “a monument to this society’scommitment to a future in which all human beings will be accorded equaldignity and respect”.

Of course, a decision that the death penalty is cruel, inhuman anddegrading punishment is not enough. The Constitution allows forlimitations on the fundamental rights, subject to certain conditions. Onceagain, these are a matter of interpretation. The Attorney General arguedthat the limitation which the death penalty places on the right not to besubjected to cruel, inhuman and degrading punishment is reasonable andjustified on the grounds that it has a unique deterrent effect and istherefore essential in a society with a violent crime rate as high as in SouthAfrica (CCT/3/94 at 78–79). Chaskalson P rejected this argument on thebasis that the deterrence of the death penalty has not, and probablycannot, be proven, and that it is therefore not reasonable or justifiablewithin the context of an open and democratic society based on freedomand equality (CCT/3/94 at 102). This is, of course, a value judgement, andone that Chaskalson P makes on the basis of his own view of democracy,freedom and equality. His legal values are evident when he discusses onepertinent reason for declaring the death penalty unconstitutional; the factthat it is arbitrary and unequal. His emphasis on the arguments that theimposition of the death penalty is necessarily an arbitrary process, as SouthAfrican law vests wide discretion in the presiding judge and there is anelement of chance at every stage of the process, reveals his regard for theprinciples of fairness and equality. He also points to argument heard by theCourt on the racial and class bias of the death penalty, and questions thepossibility of ensuring equality before the law under these circumstances(CCT/3/94 at 32–43). Justice Ackermann’s judgement is the most vividreflection of these legal values, as his contribution is motivated by a beliefthat the element of inequality and arbitrariness which is inevitable to theimposition of the death penalty needs additional emphasis. He argues thatthe value of equality is one of the most fundamental in the newConstitution, and that it permeates every aspect of the Constitution. Thearbitrary and unequal nature of the death penalty therefore renders itincompatible with the Constitution (CCT/3/94 at 105–106).

The judgement clearly indicates that the tension between constitution-alism and popular democracy is a major concern of the judges on theConstitutional Court. This issue is addressed in a similar fashion by all the


judges. While they acknowledge the importance of public opinion on thematters before the Court, they insist that the Constitution would beworthless if it did not have an autonomous body, which is not subject to thewill of the democratic majority, to guard and enforce its provisions. Theirjustification for this stance lies in a particular view of democracy. In thisview, democracy is not merely a matter of casting a vote. It also refers to asystem of basic values of which a respect for human life and dignity are thefoundation (Chaskalson, CCT/3/94 at 87), it requires the protection ofrights essential to the successful operation of a democracy, including therights to freedom of expression and association, and it strives towardssubstantive equality of all members of that society. The accountability ofthe Constitutional Court will therefore lie in its fidelity to these values andaims, and not in a reflection of the will of the majority.

Conclusion

The Constitution clearly indicates its goals: democracy, freedom, equality,unity, reconciliation, peace and reconstruction. It also appoints theConstitutional Court as the guardian of the Constitution, its Bill of Rights,and its goals. The preceding discussion has indicated that this role is aproblematic and controversial one fraught with dilemmas, and that thevery notion of constitutionalism embodied in the Court is one which has anuneasy relation with the aims of popular democracy. In the light of thesefactors, can the Court achieve the representivity and legitimacy it needs toenable it to play a meaningful role in the new South African democracy?

The above analysis of the Court’s judgement on the death penaltyillustrates that the judges all believe their enterprise to be one compatiblewith popular democracy, as the Constitution can be seen as the nation’scommitment to the establishment of a new society based on the valuesfundamental to a democratic society, and their function is to protect andenforce these values in the shape of human rights. Public reaction to thejudgement (see, for example, the ‘Letters’ column in The Star, 28 June1995: 16) indicates, however, firstly that a large number of South Africansmight not believe that every element of the Constitution is representativeof their values, and secondly that a large number of South Africans mightnot understand or like the system of constitutionalism introduced by thenew Constitution, as they believe that democracy means that the majoritygets what it wants. It is possible that this controversial judgement of theCourt can become a major obstacle to its achievement of legitimacy amongthe South African people, and this could render the Court ineffective as anactor in South African democracy.

It is, however, also possible that constitutionalism can be saved from itsliberal democratic connotations and reconciled with the aims and


aspirations of popular democracy. As Nolutshungu (1991: 93–94) haspointed out, the discourse of the South African liberation movement wasalways characterized by a strong commitment to the notion of humanrights, and it was argued earlier that popular democracy is characterized bya commitment to social and economic equality. The South AfricanConstitutional Court can be accountable to the people whose struggle gavebirth to it by interpreting the Bill of Rights in a way which would promotethe achievement of these aims and in this way contribute substantially tothe consolidation of democracy in South Africa. In this conceptualization,constitutionalism can be seen as the essence of democracy, as itincorporates both a celebration of the values fundamental to populardemocracy (including substantive equality) and a cynicism about theabilities or commitment of a body which is, like government, constitutedfor the purpose of the exercise of power, to protect those values.

South African society has emerged recently and dramatically from abrutal, authoritarian, violent and oppressive past, and it can appreciateacutely the virtues of an opposite relationship between law and govern-ment. An accountable and compassionate Constitutional Court willprovide the basis for the transformation of South African society into thevision articulated by the postscript of the Constitution: “a future foundedon the recognition of human rights, democracy and peaceful co-existenceand development opportunities for all South Africans, irrespective ofcolour, race, class, belief or sex”.

References

Barrie, G.N. (1989) The challenge of the South African judiciary in the 1990s.Tydskrif vir die Suid-Afrikaanse Reg 4, 515–522.

Cameron, E. (1991) Judicial accountability in practice. In Towards Democracy:Building a Culture of Accountability in South Africa (Du Toit, A., Ed.). Idasa: CapeTown. Constitution of the Republic of South Africa Act 200 of 1993. GovernmentPrinters: Pretoria.

Chaskalson, M. (1993) Should there be a property clause? Implications of theconstitutional protection of property in the US and the Commonwealth. Paperpresented at the Land, Property Rights and the New Constitution Conference,Sanbonani, May 1993.

Constitutional Court (1995) Unpublished judgement in The State v. Makwanyaneand Mchunu. Case Number CCT/3/94. Constitutional Court: Johannesburg.

Corder, H. (1987) The Supreme Court: Arena of Struggle. In The State of Apartheid(James, W., Ed.). Lynne Rienner Publishers: Colorado.

Davis, D.M. (1987) Post-apartheid South Africa: what future for a legal system? ActaJuridica, 220–232.

Davis, D.M. (1991) Social Power and Civil Rights: Towards a New Jurisprudence fora Future South Africa. The South African Law Journal 108, 453–457.


Didcott, J.M. (1988) Practical workings of a Bill of Rights. In A Bill of Rights for SouthAfrica (Van der Westhuizen, J. & Viljoen, H., Eds). Butterworths: Durban.

Dugard, J. (1991) Ideals of democratic accountability and the judiciary. In TowardsDemocracy: Building a Culture of Accountability in South Africa (Du Toit, A., Ed.).Idasa: Cape Town.

Dworkin, R. (1986) Law’s Empire. Fontana Press: London.Fine, R. (1992) Civil society theory and the politics of transition in South Africa.

Review of African Political Economy 55, 71–82.Giddens, A. (1989) Sociology. Polity Press: Cambridge.Group Areas Act 41 of 1951. Government Printers: Pretoria.Hagopian, M.N. (1985) Ideals and Ideologies of Modern Politics. Longman: New

York.Hall, J.A. & Ikenberry, G.J. (1989) The State. Open University Press: Milton

Keynes.Hayek, F.A. (1960) The Constitution of Liberty. Routledge & Kegan Paul: London.Hund, J. & Van der Merwe, H.W. (1986) Legal Ideology and Politics in South Africa.

Centre for Intergroup Studies: Cape Town.Liebenberg, S. (1995) The significance of social and economic rights for the

development of women in South Africa. Paper presented at the Democracy,Human Rights and Economic Development in South and Southern Africa Conference,University of the Western Cape Community Law Center, November 1995.

Mamdani, M. (1995) A critique of the state and civil society paradigm in Africaniststudies. In African Studies in Social Movements and Democracy (Mamdani, M., Ed.).CODESRIA: Dakar.

Marcus, G. (1994) Interpreting the chapter on fundamental rights. South AfricanJournal on Human Rights 10, 92–102.

Mureinik, E. (1994) A bridge to where? Introducing the interim bill of rights. SouthAfrican Journal on Human Rights 10, 31–;48.

Nicholson, D. (1992) Ideology and the South African judicial process — lessonsfrom the past. South African Journal on Human Rights 8, 52–73.

Nolutshungu, S.C. (1991) The constitutional question in South Africa. In State andConstitutionalism: An African Debate (Shivji, I.G., Ed.). Southern African PoliticalEconomy Series Trust: Harare.

Nonet, P. & Selznick, P. (1978) Law and Society in Transition: Towards Responsive Law.Harper & Row Publishers: New York.

Okoth-Ogendo, H.W.O. (1991) Constitutions without constitutionalism: reflectionson an African political paradox. In State and Constitutionalism: An African Debate(Shivji, I.G., Ed.). Southern African Political Economy Series Trust: Harare.

Olivier, P.J.J. (1994) Constitutionalism in the New South Africa. In South Africa’sCrisis of Constitutional Democracy: Can the U.S. Constitution Help? (Licht, R.A. & DeVilliers, B., Eds). Juta & Co. Ltd: Cape Town.

Parenti, M. (1983) Democracy for the Few. St. Martin’s Press: New York.Population Registration Act 31 of 1951. Government Printers: Pretoria.Poulantzas, N. (1978) State, Power, Socialism. NLB: London.Public Safety Act 3 of 1953. Government Printers: Pretoria.Sachs, A. (1992) Advancing Human Rights in South Africa. Oxford University Press:

Cape Town.


Shivji, I.G. (1991) State and constitutionalism: a new democratic perspective. InState and Constitutionalism: An African Debate (Shivji, I.G., Ed.). Southern AfricanPolitical Economy Series Trust: Harare.

Sunstein, C.R. (1993) The Partial Constitution. Harvard University Press: Cambridge,Massachusetts.

Suttner, R. (1984) Political trials and the legal process. South African Review 2,63–75.

Turk, A. (1978) Law as a weapon in social conflict. In The Sociology of Law: A ConflictPerspective (Reasons, C.E. & Rich, R.M., Eds). Butterworths: Toronto.

Weber, M. (1984) Legitimation, method, and the politics of theory. In Legitimacyand the State (Connolly, W., Ed.). Basil Blackwell: Oxford.

Woolman, S. (1994) Riding the push-me pull-you: constructing a test thatreconciles the conflicting interests which animate the limitation clause. SouthAfrican Journal on Human Rights 10, 60–91.


Documents

The South African Constitutional Court and the Death Penalty: Whose Values?