9 - The Era of Constitutional Courts

Summary

In conversations over the years with justices from the South African Constitutional Court, and with South African scholars, I always come back to a question of historical uncertainty. By the time the South African court entered its famous decision in the Certification case, the transition to post-apartheid governance had been largely completed. Now secure in his role as head of state, President Mandela had control of the police and the military, had a formidable legislative majority, and possessed an overwhelming sense of authority as the unquestionably dominant figure in South African politics. The constitution that emerged from the constituent assembly process may have had defects, but at bottom it was just not that bad. It more or less honored the initial agreements, and where it erred on the side of too much unconstrained political power, it did so mildly. In other words, the initial constitutional effort was by no means an affront to the basic values that animated the South African transition, nor would it have been challenged as fundamentally unacceptable in any democratic country.

The question I then ask is why Mandela did not simply disregard the constitutional court. As the future architect of the U.S. Bill of Rights once rhetorically inquired, what reason do we have to think that “parchment barriers” are of any use “against the encroaching spirit of power?” Mandela might have echoed Joseph Stalin's rejoinder to disapproval from the Vatican: “How many divisions does the Pope of Rome have?” Perhaps more gently, Mandela could also have claimed shared constitutional authority with the court, a nascent form of the “popular constitutionalism” claims that briefly entertained American constitutional law at the time. Or, most simply, why not just thank the court for its efforts and get on with the fraught task of governing the still fractured republic?

To ask such a question is to invite a bewildered look of incomprehension. To begin with, Mandela's personal trajectory – notably his long legal battles against his incarceration on Robben Island – left him with a surprisingly deep respect for the rule of law.