Promoting Constitutionalism and Democratic Consolidation in Africa: Lessons from the South African Judiciary

Introduction

The Charter of the Organisation of the African Unity (OAU), which preceded the African Union (AU), did not contain any provision on democracy, elections and governance whose balance sheet was largely negative during the four decades of existence of the African continental organisation. Almost all Heads of State and Government who adopted the African Charter of Democracy and Governance (ACDEG)[1] on 30 January 2007 had came to power through unconstitutional means and maintained their hold on power in the same way. Constitutions were regularly violated to help them perpetuate their authoritarian systems while the principle of limitation or separation of powers was largely ignored (Ntuli 2017: 90-91; Fombad 2006:10). Elections were mainly held to justify preservation of power instead of ensuring democratic change of government. The cardinal rule was and still remains, to a large extent, that power should be kept as long as possible and elections are organised to win and not to lose. OAU raised sovereignty and non-interference in internal affairs of another State into sacrosanct principles to be respected even in cases of unconstitutional changes of government. (Ntuli 2017: 91) The adoption of ACDEG and its entry into force on 15 February 2012, thirty days after Cameroon became the 15th AU Member State to submit its instrument of ratification on 14 January 2012, was therefore a miracle.

2017 therefore marked the 10th anniversary of the adoption of ACEDG and the 5th of its entry into force. Unfortunately, 31 out of the 55 AU Member States have ratified ACDEG and out of the 31[2] Togo[3] is the only State to have thus far submitted its implementation report to the Commission. This gives rise to the question whether African leaders were and are really committed to constitutionalism, democracy and the rule of law which are at the heart of ACDEG.

Since OAU was replaced with the AU, Africa has made significant progress on the road to constitutionalism and democracy. However, to borrow words from Francis Fukuyama (1992), African countries have not yet reached the “end of the history” of authoritarianism. Many countries still do not know a democratic rule of law. Violations of human rights, elections rigging, bad governance, corruption and non-respect for the supremacy of the Constitution and the independence of the judiciary and other institutions supporting democracy remain the rule of the political game. If the seizure of power by armed dissidents or mercenaries has practically disappeared and the number of putsches and coups d’Etat has decreased, unconstitutional changes of government continue and sometimes take new or more sophisticated forms.

On the other hand, during the commemoration of the 50th anniversary of OAU.AU in 2013, African leaders adopted an agenda for African transformation by 2063. This agenda for “Africa We Want” is driven by seven Aspirations. Aspiration Three embodies the AU vision of “An integrated Africa of good governance, democracy, and respect for human rights, justice and the rule of law”. The Agenda for 2063[4] was said to be people driven and people owned despite being known to a few AU bureaucrats and largely unknown to the overwhelming majority of the African people, including civil society organisations.

As we enter the second decade of ACDEG, this paper argues that should be taken more seriously by the Commission, other AU organs, and regional economic communities (RECs) at the continental and regional levels as well as by the government, Parliament, the judiciary, political parties, civil society organisations, and the citizenry in each African State.

The paper also holds that Africa African people have been wanting since independence is that of constitutionalism, democracy, respect for the rule of law, human rights and good governance, Africa where the judiciary would play a major role and without which the Agenda for 2063 would never materialize. Accordingly, the paper deals with the role of the judiciary in promoting constitutionalism and democratic consolidation in Africa with a focus on the jurisprudence of the Constitutional Court of South Africa, which one of the most respected in the world in general and on the African continent in particular. To start with, the paper reflects on constitutionalism, democracy and good governance which are the heart of ACDEG considered one of the most critical instruments for democratic change in Africa.

Constitutionalism, Democracy, Rule of Law and Good Governance at the Heart of ACDEG

The objectives and principles of ACDEG include the promotion of universal values and principles of democracy and human rights, the rule of law based on constitutional supremacy, regular, free and fair elections, the separation of powers, and independence of the judiciary, good governance, fight against corruption and the interdiction and condemnation of unconstitutional changes of governments. Constitutionalism, democracy, the rule of law and good governance are therefore the core values of ACDEG and to be examined briefly.

Constitutionalism

Simply defined, constitutionalism is a doctrine which preconize the limitation of powers, respect for the rule of law and human rights (Mangu 2014: 736-739; 2016: 183-188). Constitutionalism cannot exist without limitation of powers.

There is no constitutionalism without respect for the rule of law, especially the Constitution, which is the supreme law of the land. Moreover, constitutionalism does not exist without respect for human rights, whether civil, political, social, economic, cultural, individual or collective rights. Furthermore, the Constitution is so important for constitutionalism that it constitutes the normative framework that governs a State. This framework provides for the limitation of power, respect for human rights and the rule of law. Accordingly, constitutionalism has been very often confused with the Constitution. However, to reduce constitutionalism to the mere fact for a country to be governed by a constitution would be to indulge in what André Mangu labelled a « conceptual heresy » (Mangu 2011; 2014: 741) since a country may well have a Constitution and still not comply with the concept of constitutionalism. Okoth-Ogendo rightly complained about « constitutions without constitutionalism » in many African countries that adopted constitutions but still failed to abide by the principle of constitutionalism (Okoth-Ogendo 1991: 3-25; Mangu 2014: 740-742; Schochet 1979: 11; Haberson 1999: 7; Olukoshi 1999: 456). Constitutionalism is also closely associated with democracy and good governance.

Democracy

Many African constitutions drew from American President Abraham Lincoln’s speech, made at Gettysburg on 19 November 1863, and kept as “the principle of the Republic” the statement “Government of the people, by the people, for the people” which has become the most current definition of democracy. Constitutionalism constitutes the sap of democracy. For Chandler, Enslen and Renstrom (1985: 18) “democratisation is the ultimate phase of constitutionalism”. According to Conac, “constitutionalism is a prerequisite for democratic survival”. (Conac 1993: 485) Sejersted also notes that democracy has always been the best guarantee of the rule of law and the limitation of power (Sejersted 1988:139).

In liberal conception, democracy has often been reduced to pluralist and competitive elections (Joseph 1999: 9, 11; Bratton & Posner 1999: 378 -379; Harbeson 1999: 9) despite the fact that it goes beyond all these to include social values such as equality, freedom and dignity (Nzongola-Ntalaja 1997:19). Modern democracy cannot exist without elections. However, elections themselves do not make a democracy. Democratic elections should be regular, transparent, credible, free and fair and based on the rule of law (Bratton & Posner 1999: 379).

Africa and Latin America provide clear evidence that all elections are not democratic and instead of resulting in democratic consolidation considered a stage where the democratisation process has become irreversible, people generally « vote without choosing » (Ake 1996: 137) and most elections have led to « cosmetic democracies » (Ake 1996: 130) or « choiceless democracies » (Mkandawire 1999: 119-135).

Nowadays, there is no state where the leaders and people do not claim to be committed to constitutionalism, democracy, respect for human rights and the rule of law. Some countries have gone as far as proclaiming themselves “democratic” Republic”. This is the case of the Republic Democratic of North Korea, the Democratic Republic of Congo (DRC) and the People’s Democratic Republic of Ethiopia.

As Wiseman held, many governments of quite different types wish to describe themselves as democratic. In some cases the term has even been incorporated into the official name of the state… although it is a noticeable paradox that in most cases where this happened (e.g. the German Democratic Republic, the People’s Democratic Republic of Yemen, or in Africa, the Democratic Republic of Congo), the States concerned appear significantly undemocratic. (Wiseman 1990: 4)

For African people, the rule of law should necessarily be a “democratic” rule of law. As Robert Badinter pointed out, the attribute “democratic” is important (Badinter 1993: 9). In ACDEG, the rule of law is associated with democracy. The DRC Constitution that was adopted by referendum on 18 February 2006 also stressed the relationship between the rule of law and democracy as it provides that DRC is a rule of law, independent, sovereign, united and indivisible, social, democratic and secular state”.[5]

Governance

Governance is typical to any human society. Therefore, the concept of governance is not foreign to Africa. However, it gained momentum in the 1970s after the failure of the Structural Adjustment Programmes which were initiated by International Financial Institutions (IFIs) such as the Word Bank the International Monetary Fund (IMF). One-party authoritarian regimes were blamed for this failure.

In its 1989 Report, the World Bank defined governance by referring to the exercise of political power to manage the affairs of a nation (Hyden 1999: 184). However, governance can be good or bad. It can be practiced by a democratic or an authoritarian regime as in the case of the « Asian Tigers » and China. In a paper delivered in 1992 during a conference organised by the World Bank, Boeninger suggested that governance could be understood to mean good governance or good government (Hyden 1999: 184).

Anyway, African people were not interested in authoritarian governance or «dictatorships of development » (Mangu 2002: 48) but rather democratic governance. Civil society organisations, militants for democracy and African intellectuals, mainly those grouped in the Council for the Development of Social Science Research in Africa (CODESRIA), which established an Institute for Democratic Governance, largely contributed to this paradigm shift.

AU instruments such as the Constitutive Act of the AU, the (New Partnership for Africa’s Development, NEPAD) Declaration on Democracy, Political, Economic and Corporate Governance as well as ACDEG. ACEDG carries out an African vision of constitutionalism, rule of law, democracy, elections and governance. In this conception, constitutionalism, democracy and good governance are interrelated. Constitutionalism and democracy favour good governance which also strengthens them. As in the case of post-Apartheid South Africa, the judiciary can play a crucial role in their promotion.

The Judiciary and the Promotion of Constitutionalism and Democratic Consolidation

The 1996 Constitution of the Republic of South Africa, which governs the country, provides that South Africa is a democratic state. The founding values of the Republic include respect for human rights, universal suffrage and supremacy of the Constitution. The judiciary is instrumental for the enforcement of the rights enshrined in the Bill of Rights as well as ensuring respect for the rule of law. The judiciary is independent from other state organs. It consists of the courts of law. The Constitutional Court is the highest court in the country. Judicial review of legislation and administrative acts is recognised.

A number of judgements delivered since the end of Apartheid in 1994 demonstrate that the Constitutional Court and inferior courts have played an important role in promoting constitutionalism and democracy in South Africa. Some of these judgments are reviewed briefly, as they may also inspire the judiciary in other AU Member States and contribute to promoting constitutionalism and democracy on the entire African continent. The focus on the South African judiciary may require some justification.

Why South Africa and the South African Judiciary?

A number of reasons can be provided to explain the choice of the South African judiciary. First, the 1996 Constitution[6], which replaced the 1993 or Interim Constitution[7] and ended the Apartheid regime is considered “one of the most progressive Constitutions in the world”. Cass Sunstein regards it as “the most admirable constitution in the history of the world”. (Cohen 2010)

While many people take the American Constitution for a “model” to be emulated across the world, Mark Kende went as far as contending that the South African Constitution was the best, even “BETTER than the United States’s” (Cohen 2010).This is mainly due to the constitutional protection of human rights, including socioeconomic rights, and the role played by the Constitutional Court[8] in enforcing the Bill of Rights and promoting the rule of law.

Second, in view of its impressive jurisprudence, no constitutional or supreme court in the world has probably been as much tested as the South African Constitutional Court and still succeeded in responding to many challenges posed by the consolidation of constitutionalism and the rule of law.

Arguably, without a judiciary committed to constitutionalism and democracy and which has been struggling to maintain its independence vis-à-vis the ruling African National Congress (ANC), its government and Parliament, South Africa could have turned into an authoritarian state like many other African countries. In many regards, the South African judiciary has produced an impressive jurisprudence.

Some Landmark Cases

The contribution of the South African judiciary in Makwanyane, Zuma, National Coalition for gay and Lesbian Equality, Hoffman, Shilubana, August, Grootboom, and Treatment Action Campaign was assessed in a book which was edited by Narey Oumarou. (Mangu 2016: 181-2452) It is worth examining other landmark judgements in the cases such as the Al Bashir, Secret Ballot and Nkandla Cases which added to this impressive jurisprudence related to the promotion of constitutionalism and democracy in South Africa and may inspire the judiciary in other African countries.

The Certification Cases

The 1993 Constitution of the Republic of South Africa provided for a “final” Constitution to be adopted by the National Assembly and the Senate (Parliament) acting as a Constitutional Assembly with a supporting vote of at least the two-thirds of their members.[9] To become law, the text of the final Constitution had to be certified by the Constitutional Court as complying with 34 Constitutional Principles set out in the Interim Constitution.[10] Out of the 34 Constitutional Principles “(CPs) set out in Schedule 4 of the Interim Constitution, some directly related to the rule of law, separation of powers, whether horizontal or vertical, and checks and balances. CPs IV and VII stresses constitutionalism and the rule of law, which require an impartial and independent judiciary.[11]

The 1993 Constitution and later the 1996 Constitution also entitled provincial legislatures to adopt the constitutions for their respective provinces but as for the “final” Constitution, the Constitutional Court was constitutionally mandated to certify that the provincial constitutions complied with the national constitution and the Constitutional Principles. The text of the 1996 Constitution was adopted by the Constitutional Assembly on 8 May 1996 and submitted to the Constitutional Court for certification.

In Certification of the Constitution of the Republic of South Africa,[12] the Constitutional Court contributed to the theory of the separation of powers and checks and balances which are closely interrelated despite the fact that they are not synonymous.

According to the Court, the principle of the separation of powers “recognises the functional independence of branches of government” while “the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another”.[13]

The politics of deadlock, implicit in the “pure doctrine” of the separation of powers as championed by Locke and Montesquieu would make any country ungovernable. The Constitutional Court rightly pointed out that no constitutional scheme could reflect a complete separation of powers. There is no universal model of separation of powers and no separation of powers is absolute. The scheme is always one of partial separation and the separation of powers is subject to many kinds of checks and balances with judicial review being the most important.[14]

With regard to CP VI that required that there be separation of powers and appropriate checks and balances implicit in the horizontal separation of powers, the draft constitution of the Constitutional Assembly passed constitutional muster and could have been certified on this ground. Unfortunately, the Court found that it failed to comply with the requirements of vertical separation of powers contained in several CPs, especially CPs IV, VII, X, XXIV, and XXV by impermissibly shielding an ordinary statute from constitutional review and not allocating appropriate fiscal powers and functions for different degrees of local government.[15] The text was referred back to the Constitutional Assembly for amendment and resubmission.

On 11 October 1996, the Constitutional Assembly passed an amended text. In re: Certification of the Amended Text of the Constitution of the Republic of South Africa,[16] the constitutional judges were finally satisfied with the text and certified that the provisions of the amended constitutional text passed by the Constitutional Assembly on 11 October 1996 complied with the CPs in Schedule 4 to the Constitution of the Republic of South Africa, Act 200 of 1993, and could then come into force.[17] The judgement was delivered on 4 December 1996.

The Al  Bashir Cases

Having suffered decades of Apartheid, which was an international crime and a serious violation of international law, the South African government under President Thabo Mbeki campaigned for and signed the Rome Statute establishing an International Criminal Court (ICC)[18] aimed at prosecuting and judging all those responsible for the most serious international crimes, namely genocide, war crimes, crimes against humanity and the crime of aggression.[19]

As required by the 1996 Constitution,[20] Parliament enacted legislation that incorporated the Rome Statute into its domestic law,[21] making it binding law on South Africa. Sudanese President Omar Hassan Ahmad Al Bashir was by the ICC and issued two warrants for arrest for genocide, war crimes and crimes against humanity in the Darfur Province of Sudan.[22] Accordingly, the ICC had requested all State Parties to the Rome Statute, including South Africa, to cooperate by arresting, judging or deferring him to the ICC for judgment.

The Al Bashir Cases[23] were two cases decided by the High Court of South Africa and the Supreme Court of Appeal. The issue brought before the Courts was whether the South African government complied with the Rome Statute and its own law by not arresting President Al Bashir when he arrived in South Africa in June 2015 to attend the AU Summit.

The proceedings in the Bashir Cases started on Sunday 14 June 2015, the day after Al Bashir arrived in South Africa to attend the AU summit. The applicant, the Southern Africa Litigation Centre, wanted South Africa to comply with its obligations under the Rome Statute by arresting President Al Bashir, judging or transferring him to the ICC for judgment. The proceedings were adjourned until Monday 15 June 2015. Meantime, Judge Fabricius issued an interim order that compelled the respondents to prevent President Bashir from leaving the country until a final order was made in the proceedings. The Court also requested the Director General of Home Affairs to take all necessary steps with immigration officials under his authority to prevent President Bashir from leaving the country.[24] When the proceedings concluded and the Court handed down its judgment around 15h00 on Monday 15 June 2015, President Bashir ignoring the court’s ruling had already left the country with the assistance of the respondents, in violation of the interim order handed down by Judge Fabricius. (Mangu 2015: 186-187)

The High Court confirmed its interim order that the respondents were compelled to take all reasonable steps to prepare to arrest President Bashir and detain him, pending a formal request for his surrender from the ICC and failing to do so was inconsistent with the Constitution and the Implementation of the Rome Statute of the ICC Act 27 of 2002 as South Africa was bound both under international law and domestic law to arrest and surrender President Bashir as soon as he entered the country.[25] The High Court dismissed the respondents’ arguments that President Bashir enjoyed immunity under customary international law as an incumbent head of state and could not be arrested in terms of both the agreement concluded with the AU Commission to host the AU summit and the resolution taken by the regional body on 12 October 2013 to no longer cooperate with the ICC. The High Court agreed that President Bashir could enjoy immunity under customary international law. However, such immunity had become irrelevant or was waived in respect of crimes and States’ obligations under the Rome Statute.[26]

The High Court made it clear that a court of law was the wrong forum for the ventilation of regional and international policy considerations and that it could not have concerned itself with policy decisions, which in their nature fall outside their ambit, but rather with the integrity of the rule of law and the administration of justice.[27]

The High Court stressed that the rule of law are indispensable cornerstones of constitutional democracy on South Africa. A court must fearlessly address this through its judgments, and not hesitate to keep the executive within the law, failing which it would not have complied with its constitutional obligations to administer justice to all persons alike without fear, favour or prejudice.[28] The High Court added that where the rule of law was undermined by government, this was often done gradually and surreptitiously.[29] It then concluded:

A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders. A court is the guardian of justice, the cornerstone of a democratic system based on the rule of law. If the State, an organ of State or State officials does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.[30]

An ANC National Executive Committee (NEC) statement released on 14 June 2015 called upon the government to challenge the order of the High Court against Al-Bashir. Unsurprisingly, the ANC-led government sought leave to appeal against the High Court’s ruling before the Supreme Court of Appeal. In the judgment delivered on 15 March 2016 by Wallis J, with Justices Lewis and Ponnam concurring, the Supreme Court of Appeal[31] granted the respondents leave to appeal, but dismissed the appeal by the Minister of justice and Constitutional Development and Others. It upheld the judgment of the High Court that the conduct of the Respondents in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in South Africa on 13 June 2015 to attend the 25th Assembly of the African Union, was inconsistent with South Africa’s obligations in terms of the Rome Statute and section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, and unlawful.[32]

In 11 April 2016, the South African Department of Justice and Constitutional Development made a statement that it had applied for leave to appeal to the Constitutional Court against the judgment delivered by the Supreme Court of Appeal.[33] This application was set down for hearing at the Constitutional Court on 22 November 2016. On 21 October 2016, Minister Michael Masutha announced that the application was withdrawn and South Africa was no longer going to the Constitutional Court.

In fact, the prospects of success were slim since by not complying with its obligations under the Rome Statute and by ignoring a High Court’s ruling to arrest President Bashir and surrender him to the ICC, the South African Government obviously violated its obligations under the Constitution and it was unlikely that it would be granted leave to appeal.

In the judgments in the Al Bashir Cases were unprecedented on the continent. The judiciary, including the judges of the High Court demonstrated an exceptional independence from the executive and the ruling party which tend to commend the judiciary in most African countries. It is only in South Africa that a court could defy the government and order the arrest of a foreign Head of State. In South Africa, the judges could also dismiss an appeal of the Minister of Justice and impose respect on the government which ultimately decides to withdraw further appeals. With the exception of a few countries like Benin where the Constitutional Court has several times ruled against the government, no other judiciary has demonstrated such audacity. The difference with Benin lies in the fact that while such independence could be demonstrated by the highest court of the land, in South Africa, the High Court, which comes after the Constitutional Court and the Supreme Court of Appeal, could also do the same. African people leaving in other regions of the continent like Central Africa and the Great Lakes Region would wait long to see this happening in their countries where the judiciary is still subject to the government of the ruling party despite the proclamation of its independence in the Constitution.

The Secret Ballot Case[34]

On 31 March 2017, invoking his constitutional powers, President Zuma dismissed the Finance Minister, Mr. Pravin Gordhan, and his Deputy, Mr. Mcebisi Jonas. Because of the economic downgrade resulting from this decision, three political parties represented in the National Assembly, namely the United Democratic Movement (UDM), the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF) requested the Speaker to schedule a motion of no confidence in the President. The Speaker agreed and scheduled it for 18 April 2017. On 6 April 2017, UDM wrote to the Speaker asking her to prescribe a secret ballot as the voting procedure. While admitting that the Constitution and the Rules of the National Assembly did not make express provision for a secret ballot, UDM contended that secret ballot was not prohibited and some direction could be found in the Constitution[35] and in the Rules of the National Assembly.[36]

In response, the Speaker relied on Tlouamma[37] and held that voting procedures in the National Assembly were determined by the Constitution and the Rules of the National Assembly and that none of them provided for a vote on a motion of no confidence to be conducted by a secret ballot.[38]

In conclusion, the Speaker said that she had no authority in law or in terms of the Rules to determine that voting on that motion be conducted by secret ballot. She therefore dismissed UDM’s application for a secret ballot.[39] With the support of some political parties represented in the National Assembly and friends of the court, UDM approached the Constitutional Court for a ruling granting them direct access and setting aside the decision of the Speaker as unconstitutional and invalid. They also requested the Constitutional Court to direct the Speaker that a vote on a motion of no confidence in the President be conducted by secret ballot since such ballot was not prohibited.[40]

In a judgment written and read by Chief Justice Mogoeng on 22 June 2017, the Constitutional Court first granted UDM direct access. As several other constitutions[41], the 1996 Constitution of the Republic of South Africa grants rights to any person, whether natural or juristic, when it is in the interest of justice and with leave to the Constitutional Court, to bring a matter directly to the Court or appeal directly to it from any other court.[42] Chief Justice Mogoeng emphasised the importance of the separation of powers and checks and balances for a democratic and accountable government. He recalled Constitutional principle VI in Schedule 4 to the Interim Constitution which guided the constitution-making process: “There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.”[43] He insisted on accountability of those elected to represent the people and the members of the Cabinet and stressed that the National Assembly had the power to decide on the appropriate voting procedure in holding the Executive accountable. This could be done through secret ballot or not since this was not determined by the Constitution or any rule of the National Assembly. The Constitution[44] and the Rules of the National Assembly[45] empowered the Speaker to decide how a particular motion of no confidence in the President should be passed.

The Constitutional Court declared that the Speaker of the National Assembly had the power to prescribe that voting in a motion of no confidence in the President of the Republic of South Africa be conducted by secret ballot. UDM’s request was remitted to the Speaker for her to make a fresh decision. This decision of the Constitutional Court accorded with the dictates of the separation of powers. The judiciary could not interfere without violating this principle. Nevertheless, the Court held that the Speaker was mistaken by contending that she had no authority in law or in terms of the Rules to determine that voting on a motion of no confidence against the President be conducted by secret ballot. However, while championing the separation of powers principle, the Court interpreted the relevant constitutional provisions in such a manner that the Speaker had no choice but allow a secret ballot in the motion of no confidence in the President:

To allow Members of the National Assembly to vote with their conscience and choose who they truly believe to be the best presidential material for our country, without any fear of reprisals, a secret ballot has been identified as the best voting mechanism.[46] Conversely, a Member of Parliament could be exposed to a range of reasonably foreseeable prejudicial consequences when called upon to pronounce through a vote on the President’s accountability or continued suitability for the highest office…[47]

The appropriateness of a voting procedure for that motion is particularly important since our electoral system is structured in such a way that it is, broadly speaking, a party but not a Member of Parliament that gets voted into Parliament. A political party virtually determines who goes to Parliament and who is no longer allowed to represent it in Parliament. Members’ fate or future in office depends largely on the party.

The Deputy President, Ministers and Deputy Ministers who are also Members of Parliament, are presidential appointees. The ruling party has a great influence on, or dictates, who gets appointed or elected as senior office-bearers in Parliament. Almost invariably the President – although not a Member of Parliament – is the leader of the ruling party. It would be quite surprising if the senior office-bearers in Parliament were not appointed or elected with a significant input by the President and other senior party officials. There are therefore institutional and other risks that Members, particularly of any ruling party, are likely to get exposed to when they openly question or challenge the suitability of their leader(s) for the position of President…[48]

A factor that is relevant to the Speaker’s decision-making in relation to a democratically-permissible voting procedure is that “an individual member remains free to follow the dictates of personal conscience”...[49] Central to the freedom “to follow the dictates of personal conscience” is the oath of office. Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail. This is so not only because they were elected through their parties to represent the people, but also to enable the people to govern through them, in terms of the Constitution…[50]

When the risk that inheres in voting in defiance of the instructions of one’s party is evaluated, it must be counter-balanced with the apparent difficulty of being removed from the Assembly…[51]

The power to decide whether a motion of no confidence is to be resolved through an open or secret ballot cannot be used illegitimately or in a manner that has no regard for the surrounding circumstances that ought to inform its exercise. It is neither for the benefit of the Speaker nor his or her party. This power must be exercised to achieve the purpose of a motion of no confidence which is primarily about guaranteeing the effectiveness of regular mechanisms…[52]

To the extent that might have been understood to have held that a secret ballot procedure is not at all constitutionally permissible, that understanding is incorrect. The Speaker’s decision was invalid and must be set aside.[53]

The Court declined to impose a decision on the Speaker and remitted the matter to her for a fresh decision as “no legal basis exists for that radical and separation of powers-insensitive move”.[54] It would thus be most inappropriate to order the Speaker to have the motion of no confidence in the President conducted by secret ballot, as if she ever said that she would not do so even if she had the power to do so and circumstances plainly cry out for it. To order a secret ballot would trench separation of powers.[55]

In view of the above, the Court granted UDM direct access and set aside the Speaker’s decision of 6 April 2017 that she had no constitutional power to prescribe that voting in a motion of no confidence in the President of the Republic of South Africa be conducted by secret ballot and referred the matter back to her for a fresh decision to comply with the principle of the separation of powers.[56] However, it was clear from its reasoning that the Constitutional Court favoured a secret ballot vote and the Speaker of the National Assembly understood it when she ruled that the vote had to be conducted by secret ballot.

The ruling of the Constitutional Court, which did not serve the interests of the President or the ruling party despite their great influence in the appointment of its members, also proved that the latter could assert their independence and administer justice without fear or favour as prescribed by the Constitution. In many other African countries with similar provisions on the independence of the judiciary, the Constitutional Court could have dismissed the application for a secret ballot vote made by the opposition parties or ruled at least that it was incompetent to pronounce on a matter which fell within the exclusive competence of the National Assembly.

The Nkandla Cases[57]

The Nkandla Cases relate to the building of Jacob Gedleyihlekisa Zuma’s presidential private home in Nkandla in the KwaZulu-Natal Province. They involved several institutions: President Jacob Zuma who was the main beneficiary of the governmental project; Cabinet’s members (Ministers of Police and Public Works), who authorised the spending of public money to build the presidential private home and later exonerated President Zuma from any wrong doing; the Public Prosecutor, one of the Chapter 9 State institutions supporting constitutional democracy[58] that investigated and took the remedial action; the National Assembly (and the Speaker) which examined Public Prosecutor’s report and other reports and to which the President and other Cabinet’s members are accountable, but exonerated the President; political parties (EFF, UDM, Democratic Alliance, DA, and Congress of the People, COPE) that applied to the Constitutional Court and the Constitutional Court itself that granted them leave and decided on the matter in its capacity as “the ultimate guardian of the Constitution and its values”.

With regard to the Public Prosecutor, the Constitution provides that he/she has the power, as regulated by national legislation,

a). to investigate any conduct in state affairs, or in the public administration in any sphere of government,

that is alleged or suspected to be improper or to result in any impropriety or prejudice;

b)    to report on that conduct; and

c)    to take appropriate remedial action.[59]

In EFF1, which was the first Nkandla case, a number of several South Africans, including a Member of Parliament, lodged complaints with the Public Protector concerning aspects of the security upgrades at the President’s Nkandla private residence. This triggered an extensive investigation by the Public Protector into the Nkandla project. In her report, the Public Protector concluded that several improvements were non-security features.

Since the State was in this instance under an obligation only to provide security for the President at his private residence, these improvements amounted to undue benefit or unlawful enrichment to him and his family and constituted a breach of his constitutional obligations and the code of ethics prescribed for Cabinet’s members by national legislation. Accordingly, the President had to pay for them.[60] In her report released on 19 March 2014, having arrived at the conclusion that the President and his family were unduly enriched as a result of the non-security features, the Public Protector took remedial action against him in terms of section 182(1)(c) of the Constitution. The President of the Republic was requested to do the following:

• Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW [Department of Public Works] at his private residence that do not relate to security, and which include [the] visitors’ centre, the amphitheatre, the cattle kraal and chicken run and the swimming pool;

• Pay a reasonable percentage of the cost of the measures as determined with the assistance of the National Treasury;
• Reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused; and
• Report to the National Assembly on his comments and actions on this report within 14 days.[61]

Consistent with this directive, the President submitted his response to the National Assembly, which set up two Ad Hoc Committees to examine the Public Protector’s report as well as other reports including the one compiled by the Minister of Police.

After endorsing the report by the Minister of Police and a report of one of its two Ad Hoc Committees, the National Assembly resolved to absolve the President of all liability. Consequently, the President did not comply with the remedial action taken by the Public Protector.[62]

For over one year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action. EFF and DA then approached the Constitutional Court against the National Assembly and the President of the Republic. EFF applied for an order affirming the legally binding effect of the Public Protector’s remedial action and declaring that both the President and the National Assembly had acted in breach of their constitutional obligations. DA launched a similar application in the Western Cape Division of the High Court, Cape Town, and subsequently to this Court conditional upon the EFF’s application being heard by this Court.[63] Both applications were joined for the Court to decide by a single decision.

On 31 March 2016, the Constitutional Court ruled that it had the exclusive jurisdiction to deal with the application made by EFF and DA grant them direct access. The Court confirmed that the remedial action taken by the Public Prosecutor was binding and failure by the President to comply was inconsistent with the Constitution and invalid.

The National Treasury had to determine the reasonable costs of the measures implemented by the Department of Public Work at the President’s homestead that did not relate to security and the President had to pay the money within a specific period, as he unduly benefitted. The President had also to reprimand the Ministers involved in the project.

The Court ruled that the resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector was in consistent with sections 42(3), 55 (2) (a) and (b) and 181(3) of the Constitution and invalid and it was set aside. The Court found that by covering the President, the ANC-dominated National Assembly had failed to hold the executive accountable, as required by the Constitution. Finally, the Constitutional Court ordered the President, the Minister of Police and the National Assembly to pay costs of the applications, including the costs of two counsel.[64] Elaborating on the remedial action taken by the Public Protector, the Constitutional Court referred to Fose where it held that “An appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced.”[65] According to the Court,

Taking appropriate remedial action is much more significant than making a mere endeavour to address complaints as the most the Public Protector could do in terms of the Interim Constitution.

It connotes providing a proper, fitting, suitable and effective remedy for whatever complaint and against whomsoever the Public Protector is called upon to investigate. However sensitive, embarrassing and far-reaching the implications of her report and findings, she is constitutionally empowered to take action that has that effect, if it is the best attempt at curing the root cause of the complaint. Remedial action must therefore be suitable and effective. For it to be effective in addressing the investigated complaint, it often has to be binding. [66]

Chief Justice Mogoeng concluded that the remedial action taken by the Public Prosecutor could not be ignored without any legal consequences because our constitutional order hinges also on the rule of law. No decision grounded on the Constitution or law may be disregarded without recourse to a court of law. To do otherwise would “amount to a licence to self-help”. Whether the Public Protector’s decision amount to administrative action or not, the disregard for remedial action by those adversely affected by it, amounts to taking the law into their own hands and is illegal. No binding and constitutionally or statutorily sourced decision may be disregarded willy-nilly. It has legal consequences and must be complied with or acted upon. To achieve the opposite outcome lawfully, an order of court would have to be obtained.[67]

He reiterated that the remedial action that was taken against the President had a binding effect.[68] All the President was in law entitled to do was comply even if he had reason to doubt its correctness and comply fully.[69]The Nkandla Cases gave the Constitutional Court an opportunity to stress once more the principle of separation of powers, including checks and balances, and the role of the judiciary. Chief Justice Mogoeng referred back to the Certification Case[70] when the Constitutional Court had first to deal with the matter:

The principle of separation of powers, on the one hand, recognises the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can reflect a complete separation of powers: the scheme is always one of partial separation.[71]

However, unlike in the Certification Cases and any other case decided previously, the Constitutional Court went far to deal with the separation of powers, checks and balances and the rule of law in relation to the judiciary.

In Chief Justice Mogoeng’s view, the judiciary is but one of the three branches of government. It does not have unlimited powers and must always be sensitive to the need to refrain from undue interference with the functional independence of other branches of government.[72] The Court noted:

Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution. But under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government… Courts are required by the Constitution ‘to ensure that all branches of government act within the law’ and fulfill their constitutional obligations. This Court ‘has been given the responsibility of being the ultimate guardian of the Constitution and its values’.[73]

Quis custodiet ipsos custodies? “Who will guard the guards themselves?” Roman poet Juvenal’s famous phrase has generally been used with reference to the judges as they appeared to be uncontrolled. However, despite controlling other state organs, the constitutional “guardian of the Constitution and the rule of law” are themselves subject to and should therefore comply with it. Chief Justice Mogoeng held that within the context of the separation of powers, it falls outside the parameters of judicial authority for the judiciary to usurp the powers of other state organs, for instance to decide on behalf of the executive or any other state organ and to prescribe to the National Assembly how to scrutinise executive action.[74] This is why, in the Secret Ballot Case, the Constitutional Court left the matter to be decided by the Speaker of the National Assembly.

Chief Justice Mogoeng appeased those who could be worried about an uncontrolled judiciary suspected of establishing a de facto a “government of the judges” (Fombad 2016: 117).

As he pointed out, ours is a much broader and less intrusive role. And that is to determine whether what the National Assembly did does in substance and in reality amount to fulfilment of its constitutional obligations. That is the sum-total of the constitutionally permissible judicial enquiry to be embarked upon. And these are some of the “vital limits on judicial authority and the Constitution’s design do leave certain matters to other branches of government”… Courts should not interfere in the processes of other branches of government unless otherwise authorised by the Constitution… It is therefore not for this Court to prescribe to Parliament what structures or measures to establish or employ respectively in order to fulfill responsibilities primarily entrusted to it. Courts ought not to blink at the thought of asserting their authority, whenever it is constitutionally permissible to do so, irrespective of the issues or who is involved. At the same time, and mindful of the vital strictures of their powers, they must be on high alert against impermissible encroachment on the powers of the other arms of government. [75]

The Constitutional Court contributed further to the separation of powers doctrine by stressing that the principle did not apply to the three traditional powers, namely the executive, and the judiciary namely, which could not interfere with the exercise of power by one another. However, the three powers were also prevented from interfering with the exercise of powers vested in other State organs by the Constitution and even in terms of legislation. As Chief Justice Mogoeng stated authoritatively in defense of the separation of powers, checks and balances and the rule of law:

There was everything wrong with the National Assembly stepping into the shoes of the Public Protector, by passing a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replacing them with its own findings and “remedial action”. This, the rule of law is dead against. It is another way of taking the law into one’s hands and thus constitutes self-help. [76]

On 1 April 2016, the day after the Constitutional Court handed down its judgment, President Zuma addressed the nation. He welcomed the judgment unreservedly and committed to abiding by it while denying any wrongdoing.[77] On 5 April 2016, Opposition’s leaders moved a motion in the National Assembly to get the President impeached for serious violation of the Constitution. The motion supported by EFF, DA and COPE was unfortunately defeated, as this required the National Assembly to first conclude that the President had seriously violated the Constitution, then condemn his actions and remove him from office.[78] The National Assembly failed in this regard to hold the President accountable. This prompted Opposition parties in the National Assembly, namely EFF, UDM, COPE and DA, to approach the Court on the failure of the National Assembly to act against the President, arguing that the matter fell within the exclusive jurisdiction of the Court.[79]

In a judgment delivered on 29 December 2017, the Court ruled that it had exclusive jurisdiction to hear the application. It held that the National Assembly had failed to make rules and put in place a special mechanism for the removal of a President in terms of section 89(1) (impeachment) and to determine without delay whether  the President has breached section 89(1) (a) or (b) and this failure was inconsistent with the Constitution.[80]

Conclusion

While many African countries are still lagging behind, constitutional democracy is now well established in South Africa as one can hardly imagine this country backpedalling or reverting back to authoritarian rule it went through during Apartheid. Accordingly, post-Apartheid South Africa is one of the rare cases of democratic consolidation together with countries such as Mauritius, Botswana, Benin, Senegal, Sao Tome and Principle.

The consolidation of constitutionalism, democracy and the rule of law in South Africa owes a great deal to an independent and impartial judiciary committed to constitutionalism and democracy. By asserting its independence from the executive, the legislature and the political parties, especially the ruling party which has been able to manipulate the judiciary in most African countries, the South African judiciary has shown that judicial independence and separation of powers were not empty slogans. The judiciary itself would not have contributed thus much to constitutionalism and democracy if the courts were not really independent and had failed to apply the Constitution and the law impartially, without fear, favour or prejudice, as required by the Constitution.[81] Not only has the judiciary been able to affirm its independence even vis-à-vis the President of the Republic, its government and party, but it also championed the independence and authority of other state organs like the Public Protector, which is one of the Chapter 9 or institutions supporting democracy.

The judiciary has also been able to enforce all the rights enshrined in the Bill of Rights, including civil and political rights and social and economic rights which are hardly enforceable since their enforcement is dependent on national resources. The Makwanyane case, where faced with the silence of the 1993 Constitution, the Constitutional Court championed the right to human dignity and declared the death penalty unconstitutional and invalid[82] and the Grootbooom case,[83] where it made yet another contribution to the development of human rights jurisprudence so much dominated by civil and political rights or first-generation rights by asserting socio-economic rights such as the right to access to adequate housing, health-care, sufficient food and water, and social security remain some of the jewels of the South African jurisprudence.

Arguably, post-Apartheid South Africa would not be the constitutional and democratic state that the world admires nowadays without the judiciary in general and the Constitutional Court in particular. The judiciary itself would not have contributed thus much if the courts were not really independent and had failed to apply the Constitution and the law impartially, without fear, favour or prejudice, as required by the Constitution.[84] The judgments of the judiciary in cases such the Certification, Al Bashir, Secret ballot and Nkandla Cases bear to testimony this remarkable jurisprudence.

The impressive contribution of the South African judiciary to the promotion of constitutionalism and democratic consolidation in post-Apartheid South Africa could only be made possible by a Constitution, which is one of the best in the world. However, Africa is well-known for the huge gap, which usually between the law and the practice. Each African country is governed by a Constitution. Constitutions do not always promote constitutionalism and the mere fact that a country a Constitution which provides for the separation of powers, independence of the judiciary, respect for human rights and the rule of law does not necessarily implies that there is respect for the Constitution, separation of powers, human rights and the rule of law in that country. A Constitution would never be good or one of the best if there is no independent and impartial judiciary to enforce it. On the other hand, the South African judiciary has been able to make such formidable contribution to constitutionalism and democracy through its jurisprudence because the judges could go beyond the old-age constitutional literal or grammatical interpretation methods to embrace holistic, contextual and teleological ones which tend to promote values and the purpose of the Constitution.

Courts of law, especially constitutional courts, are the guardians of the constitutional and legal order as well as the guarantors and interpreters of the Constitution (Mangu 2002: 150). With regard to constitutional interpretation, the Constitutional Court held that the principles, as embedded in the Constitution, should not be interpreted with technical rigidity, but rather applied “purposively and teleologicaly” and “read holistically with an integrated approach”.[85] Constantly using a purposive, holistic and value-laden approach to constitutional interpretation, the courts have been trading carefully by recognizing their limits and refraining from interfering in the processes and usurping the powers vested by the Constitution in other state organs.

They have further contributed to promoting the separation of powers, checks and balances, and the rule of law by affirming the powers of other state institutions like the Public Prosecutor that can also check and balance the powers of the executive and the legislature from usurping and ignoring their powers.

There are definitely a number of lessons that other African countries and even the rest of the world may learn from the South African judiciary as they strive to promote constitutionalism and consolidate democracy. These lessons mainly relate to independence, impartiality, audacity, commitment to the rule of law and human rights as well as use of the relevant constitutional methods to promote the values and the purpose of the Constitution. This is critical for sustainable peace and development in each African Union Member State. This is instrumental for an African Renaissance. This is also a prerequisite for the realisation of the AU agenda towards “Africa We Want” by 2013 and especially the fulfillment of its third aspiration, “An integrated Africa of good governance, democracy, and respect for human rights, justice and the rule of law”.

References

Ake, Cl. 1996.  Development and Democracy in Africa. Washington, D.C.  Brookings

Institution.

Badinter, R. 1993. « Quelques réflexions sur l’Etat de droit en Afrique ». In   G Conac (ed.).

             L’Afrique en transition vers le pluralisme politique, Paris: Economica,            

Bratton M & DN Posner. 1999. « A First Look at Second Elections in Africa with

Illustrations from Zambia ». In R Joseph (ed). State, Conflict and Democracy in

 Africa. Boulder, CO & London: Lynne Rienner Publishers,

Chandler, R.C., Enslen, R.A. & Renstrom, P.G. 1985. The Constitutional Law Dictionary, Vol.1, 

               Individual Rights, ABC-CLIO, Oxford, England.

Cohen, D.F. 2010. “A Constitution at a Crossroads: A Conversation with the Chief Justice of the

Constitutional Court of South Africa”. North-western Journal of Human Rights. Vol, 12, Issue 2, 2014, 149. At http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1170&context=njihr (accessed on 20 March 2016).

Conac G. 1993. “Introduction”. In   G Conac (ed.). L’Afrique en transition vers le pluralisme

            Politique. Paris: Economica.

Fombad, C. 2017. « Presidential Term Limits through Constitutional Amendments in

Africa: Deconstructing Legitimacy ». In Matersson G & M Meirotti (eds). Checks and Balances: African constitutions and democracy in the 21st century. Johannesburg: EISA.

Fukuyama, F. 1992. The End of History and the Last Man. New York: Free Press, 1992.     

Haberson, J.W. 1999. « Rethinking Dramatic Transitions: Lessons from Eastern and

Southern Africa ». In R Joseph (ed). State, Conflict and Democracy in Africa. Boulder, 1CO & London: Lynne Rienner Publishers.

Haberson, J.W. 1986. « Constitutions and Constitutionalism in Africa: A Tentative

Theoretical Exploration ». In D Ronen (ed). Democracy and Pluralism in Africa. Boulder: Lynne Rienner Publishers.

Hyden, G. 1999. « Governance and the Reconstitution of Political Order ». In R Joseph (ed).

State, Conflict and Democracy in Africa. Boulder, 1CO & London: Lynne Rienner Publishers.

 

Joseph, J. 1999. « State, Conflict and Democracy in Africa”. In R Joseph (ed). State, Conflict and

            Democracy in Africa. Boulder, CO & London: Lynne Rienner Publishers.

Kende, M.K. 2010. “Why the South African Constitution is BETTER than the United States’s”

At http://academic.udayton.edu/Race/06hrights/GeoRegions/Africa/Safrica03.htm (accessed on 20 March 2016).

Mangu Mbata A. 2002. The Road to Constitutionalism and Democracy in Post-colonial

Africa: The case of the Democratic Republic of Congo. Thèse de doctorat en Droit, University of South Africa, Pretoria.

Mangu Mbata, A. 2011. « Hérésie conceptuelle au sujet du constitutionnalisme et

‘Constitutions sans constitutionnalisme’ en Afrique francophone ». Communication à la Conférence internationale sur les « Les Tabous du constitutionnalisme en Afrique » organisée par le Centre de Droit Public de l’Université de Lomé et le centre d ; Etudes et de Recherche sur les Droits Africains et sur le Développement Institutionnel de l’Université Montesquieu-Bordeaux IV, Lomé 14-15 juin 2011.

Mangu Mbata, A. 2014, « Constitutionnalisme, constitutions, et limitation des pouvoirs et des

mandats présidentiels en Afrique ». In Aivo, F.J. (ed) La Constitution béninoise du 11 décembre 1990 : un modèle pour l’Afrique ? Paris: L’Harmattan. 

Mangu, Mbata, A. 2015. “The Bashir case and backpedalling in Human Rights and the Rule of

Law in Post-Mandela South Africa”. African Journal of Democracy and Governance, Vol 2, Nos 1 & 2, 2015, 186-187.

Mangu Mbata A. 2016.  « The Constitutional Court and the promotion of constitutionalism in

South Africa: two decades on ». In O Narey (ed). La Justice constitutionnelle. Paris: L’Harmattan.

Mangu Mbata, A. 2017. «‘Unconstitutional Changes of Governments’ and Limitations to

African Union/Regional Economic Communities Responses ». In Matersson G & M Meirotti (eds). Checks and Balances: African constitutions and democracy in the 21st century. Johannesburg : EISA.

Mkandawire, T.1999. “Crisis management and the Making of ‘Choiceless democracies’”. In R

Joseph (ed). State, Conflict and Democracy in Africa. Boulder, CO & London: Lynne Rienner Publishers,

Ntuli, Nokukhanya. 2017. « The Impact of regional and Sub-regional Norms and Standards

on Democratic Governance in Promoting Constitutionalism in Africa ».  In Matersson G & M Meirotti (eds). Checks and Balances: African constitutions and democracy in the 21st century. Johannesburg: EISA

Nzongola-Ntalaja, G.1997. « The State and Democracy in Africa: In G Nzongola-Ntalaja &

M Lee (eds). The State and Democracy in Africa. Harare: AAPS Books.

Okoth-Ogendo, H.W.O.1991. « Constitutions without Constitutionalism: Reflections on an

African Political Phenomenon ». In IG Shivji (ed). State and Constitutionalism: An African Debate on Democracy. Harare: SAPES.

Olukoshi, A. 1999. « State, Conflict and Democracy in Africa: The Complex Process of

Renewal ». In R Joseph (ed). State, Conflict and Democracy in Africa. Boulder, CO &

London: Lynne Rienner Publishers,

Omotola, J.S. 2011. « Unconstitutional Changes of Governments in Africa: What

Implications for Democratic Consolidation? ». Discussion paper 70, Uppsala: Nordiska Africainstitutet, January 2011.  http://nai.diva-portal.org/smash/get/diva2:478511/FULLTEXT01.pdf. (accessed on 10 May 2018).

Schochet, G.J.1979. « Introduction: Constitutionalism, Liberalism, and the Study of

Politics ». In JR Pennock & J W Chapman (eds). Constitutionalism. New York: New

York University Press. 

Sejersted, F.1988. “Democracy and the Rule of Law: Some Historical Experiences of     

             Contradictions in the striving for good government”. In J Elster & R Slagstad,    

             (eds.) Constitutionalism and Democracy, New York-New Rochelle-Melbourne-Sydney: 

              Cambridge University Press.  

Wiseman, J.A.1990. Democracy in Black Africa. Survival and Revival. New York, New York:

                 Paragon House Publishers.

Yihdego, Z. 2013. « Democracy, Peoples’ Uprising and Unconstitutional Change of

Government in Egypt: The African Union Principles and Responses ». http://www.ejiltalk.org/democracy-peoples-uprising-and-unconstitutional-change-of-government-in-Egypt-the-African-union-principles-and-responses (accessed on 10 May 2018).

*Prof André Mbata Mangu holds a Doctoral degree and an Master’s degree in Law from the University of South Africa in Pretoria (UNISA). He has taught law at the University of the North (currently University of Limpopo, Polokwane, South Africa) and served as a Guest Professor at the Université Paris 13 and Université Paris Sud (Paris, France) as well as the University of Addis Ababa (Addis Ababa, Ethiopia). Dr Mangu is currently Research Professor in the College of Law at UNISA, Ordinary Professor in the Faculty of Law, University of Kinshasa (Democratic Republic of Congo, Member of the Executive Committee of the Council for the Development of Social Science Research in Africa (CODESRIA, Dakar, Senegal), Member of the Advisory Board of the Social Science Research Council / Africa Peace-building Network, SSRC/APN, New York, USA) and Editor-in-Chief of the African Journal of Democracy and Governance published by the Institute for Democracy, Governance, Peace & Development in Africa (IDGPA) (https://journals.co.za/content/journal/ajdg).

[1] ACDEG, see at https://au.int/en/treaties/african-charter-democracy-elections-and-governanc (accessed on 10 May 2018).

[2] See Ratification Status at https://au.int/sites/default/files/treaties/7790-sl-african_charter_on_democracy_elections_and_governance.pdf (accessed on 10 May 2018).

[3] Togo submitted its report on 17 March 2017.

 

[5] Article 1 of the DRC Constitution of 18 February 2006.

[6] The 1996 Constitution was enacted as Act 108 of 1996.

[7] Act 200 of 1993.

[8] The South African Constitutional Court consists of eleven judges, including the Chief Justice and the Deputy Chief Justice. It is the highest court of the Republic. It may decide constitutional matters and any point of law of general public importance. It makes the final decision whether a matter is within its jurisdiction. It is the only court that may decide disputes between organs of state in the national or provincial sphere of government concerning their constitutional status, powers or functions, on the constitutionality of any Act of Parliament, any provincial Act, any parliamentary or provincial Bill and on the constitutionality of any amendment to the constitution. It may also decide that Parliament or the President has failed to fulfill a constitutional obligation or certify a provincial constitution. The Constitutional Court makes the final order decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status, before that order has any force. See Constitution of the Republic of South Africa, 1996, Section 167 (1) – (6) with sections 79, 80, 121, 122 & 144.

[9] Sect 71(2)-(3) & 73(2).

[10] Schedule 4.

[11] See CP IV: The Constitution shall be the supreme law of the land. It shall be binding on all organs of state at all levels of government. CP VII: The judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.

[12] Certification of the Constitution of the Republic of South Africa at 1260 (C)- (D), 1275 (A), 1398 (A)- 1399 (H).

[13] Certification of the Constitution of the Republic of South Africa at para 1299 F-G.

[14] Idem at paras 1298 G, 1299 A-H, 1300 A-F, 1301 A.

[15] Idem at paras 1398 (A) – 1399 (G).

[16] In re: Certification of the Amended Text of the Constitution of the Republic of South Africa, 1997 (1) BCLR 1 (CC).

[17] Idem at para 60 (G) – (H).

[18] Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procès -verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002. At https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf (accessed in 15 May 2016).

[19] Art 5 of the Rome Statute.

[20] Sec 231(3) of the 1996 Constitution.

[21] Implementation of the Rome Statute of the ICC Act, Act 27 of 2002.

[22] Bashir Case 1 at  para 1.

[23] See Southern Africa Litigation Centre v Minister of Justice and Constitutional Development & Others 2015 (5) SA 1 (GP) (Bashir Case 1) & The Minister of Justice and Constitutional Development v Southern Africa Litigation Centre C(867/15) (2016) ZASCA 17 (Bashir Case 2).

[24] Idem paras 2 – 6.

[25] Bashir Case 1 at paras 23 & 33.

[26] Idem at para 28.

[27] Bashir Case 1 at paras 33 – 34.

[28] Idem at para 38.

[29] Idem.

[30] Idem, para 37.2.

[31] Bashir Case 2.

[32] Idem at para 113.

[33] See “News Archive” at http://www.internationalcrimesdatabase.org/home/newsarchive (accessed on 15 May 2016).

[34] United Democratic Movement v Speaker of the National Assembly and Others (CCT89/17) [2017] ZACC 21; 2017 (8) BCLR 1061 (CC) (22 June 2017).

[35] See United Democratic Movement v Speaker of the National Assembly and Others at paras 13-15; Sections 57 and 86(2) of the Constitution, read with item 6(a), Part A of Schedule 3 to the Constitution.

[36] Rule 2 of the Rules of the National Assembly.

[37] See United Democratic Movement v Speaker of the National Assembly and Others and paras 16, 89 & 91; Tlouamma v Speaker of the National Assembly [2015] ZAWCHC 140; 2016 (1) SA 534 (WCC). In this case, the High Court held that there was no implied or express constitutional requirement for voting by secret ballot on a motion of no confidence in the President and therefore dismissed an application for an order to compel the National Assembly to vote on a motion of no confidence by secret ballot. UDM reiterated that the public interest dictated that the vote of no confidence be conducted by a secret ballot.

[38] United Democratic Movement v Speaker of the National Assembly and Others at para 16.

[39] United Democratic Movement v Speaker of the National Assembly and Others at paras 17-18.

[40] Idem at para 13.

[41] See Article 137(3)(a) of the 1995 Constitution of Uganda; Article 22 of the 2010 Constitution of Uganda; Article 122 of the 1990 Constitution of Benin; Article 162 of the DRC 2006 Constitution.

[42] Section 167(6) (a)-(b).

[43] See also Certification of the Constitution of Republic of South Africa [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (Certification case) at para 45. 3 Sections 48, 62, 87, 95 and 174 of the Constitution. 4 Section 178 of the Constitution. 5 Section 174 of the Constitution.

[44] Section 57 of the 1996 Constitution.

[45] Rule 103(1) & (3) of the National Assembly.

[46]United Democratic Movement v Speaker of the National Assembly and Others at para 74.

[47] Idem at para 75.

[48] Idem at para 76.

[49] Idem at para 78.

[50] Idem at para 79.

[51]Idem at para 80.

[52]United Democratic Movement v Speaker of the National Assembly and Others at para 85.

[53]Idem at para 91

[54] Idem at para 92.

[55] Idem at para 93.

[56] Idem at para 97.

[57]Economic Freedom Fighters (EFF) v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly (2016) ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) (EFF 1) at  http://www.enca.com/south-africa/full-judgment-concourt-ruling-nkandla-matter (accessed on 15 February 2017).and  Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017] ZACC 47 (EFF 2) at  http://www.enca.com/south-africa/full-judgment-concourt-ruling-nkandla-matter (accessed on 15 February 2017).

[58] Section 181 of the 1996 Constitution. The six other institutions supporting constitutional democracy are the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor- General and the Electoral Commission.

[59] Section 182(1) of the 1996 Constitution.

[60] EFF 1 at paras 5 – 7.

[61] Idem at para 10.

[62] EFF 1 at para 11 - 12.

[63] Idem at para 13.

[64] Idem at paras 83, 105.

[65] See Fose v Minister of Safety and Security (1997) ZACC 6, 1997 (3) SA 786 (CC), 1997 (7) BCLR 851 (CC) at para 69; EFF 1 at para 67.

[66] EFF 1 at para 68.

[67] EFF 1 paras 73-74.

[68] Idem at para 76.

[69] Idem at paras 81 & 82.

[70] Certification of the Constitution of the Republic of South Africa at para 109.

[71] See EFF 1 at para 91; Certification of the Constitution of the Republic of South Africa  at para 109.

[72] EFF 1 at para 92.

[73] Idem.

[74] EFF 1 at para 93.

[75] Idem at para 93.

[76] Idem at para 98.

[77] Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (2017) ZACC 47 (EFF 2) at paras 6-7.

[78] EFF 2 at pars 8 – 9.

[79] Idem at para 222.

[80] Idem at paras 46, 47 & 222.

[81] Constitution of the Republic of South Africa, 1996, Section 165 (2).

[82] S v Makwanyane  and Another 1995 (6) BCLR 665 (CC).

[83] Government of RSA and Others v Grootboom and Others 2001 (1) SA 46

[84] Constitution of the Republic of South Africa, 1996, Section 165 (2).

[85] Certification of the Constitution of the Republic of South Africa at paras 1275 E-G, I, 1351 D; S v Makwanyane at paras 676 D-H, 777 F-H.