CLC Stream C: Constitutionalism, human rights and the rule of law

June 1st, 2013

The challenges of modern constitutions

By Kim Hawkey

In a session chaired by Dr Sam Amadi, the chair of the Nigerian Electricity Regulatory Commission; former South African Constitutional Court Justice Kate O’Regan, Indian advocate Jaideep Gupta QC and Law Society of Zimbabwe President  Lloyd Mhishi spoke on the challenges of modern constitutions.

Five challenges for modern constitution-makers

Justice O’Regan addressed the topic of the session primarily from the perspective of South Africa’s experience of constitution-making.

Justice O’Regan noted that more than half of the world’s constitutions had been adopted since 1974 and that the average life of a constitution was 19 years. Only eight constitutions that are still in force have lasted more than 100 years, including those of the United States of America (221 years), Norway (196 years) and Belgium (179 years), she said, adding:

‘There is a positive correlation between constitutional endurance and stability and prosperity.’

Justice O’Regan highlighted the following aspects that constitution-makers should consider:

  • Whether to opt for a parliamentary or a presidential system.
  • Whether to provide for constitutional amendability.
  • Whether to have a federal or a unitary system, or a hybrid.
  • Whether to have parliamentary sovereignty or constitutional supremacy.
  • If the constitution should include a Bill of Rights and, if so, what it should contain.
  • The appointment of judges.

Following this, Justice O’Regan spoke on five related challenges, namely:

  • Political will.
  • Money and politics.
  • ‘Constituting’ citizens: Accommodating difference.
  • Dealing with past injustice and exclusion.
  • Fostering independent institutions.

Political will    

Justice O’Regan said that comparative constitutional lawyers and political scientists often explained the durability of constitutions by referring to the support for them by the elites in society.

However, she said that this support needed to be broader than that of one dominant political party or interest group.

‘In assessing support, it is necessary to consider not only political parties, but corporations, trade unions, civil society and other powerful sectors,’ she said in this regard.

Justice O’Regan added that without reasonably broad support, a constitution-making process was not likely to survive ‘no matter how fine the constitutional text may be’.

Referring to the South African experience, she said that the country had been ‘fortunate’ to have widespread support for the constitution-making process and broad support for its product.

‘People bought into the project,’ she said.

Money and politics

Justice O’Regan noted that ‘very few constitutions’ carefully regulated the relationship between money and politics.

‘The key issue in “money and politics” is the regulation of funding for political parties, especially in relation to electoral campaigns. Failure to regulate political party funding can increase opportunities for corruption and contribute to public distrust of democracy,’ she said.

As a solution, Justice O’Regan suggested that, when drafting constitutions, the following should be considered:

  • Disclosure of political parties’ funding.
  • Prohibiting the funding of political parties by foreign governments and other foreign interests (nearly 75% of countries worldwide do so, she said).
  • Impositing spending or donation limits.

‘Constituting’ citizens: Accommodating difference and disadvantage

Few democracies are both homogenous and egalitarian, Justice O’Regan said. Therefore, addressing challenges of ‘difference’ and ‘disadvantage’ may be key issues in 21st century constitution-making, which would require a conception of ‘citizen’, she said.

Justice O’Regan referred to the acknowledgment in the South African Constitution of the ‘deep pattern of disadvantage’ as a result of the country’s history and patterns of difference based on language, culture and religion.

However, while the Constitution asserted the importance of cultural, religious and linguistic diversity, this came with the rider that related rights were not to be exercised inconsistently with the Bill of Rights. The recognition in the Constitution of the institution, status and role of traditional leaders and customary law was subject to the same limitation, she added, noting that there were ‘ongoing controversies’ in this area relating to the Traditional Courts Bill and the Communal Land Rights Act 11 of 2004.

‘The premise of the “constitution” of citizens is equality – citizens are of equal worth. The challenge in dealing with patterns of deep social inequality is to create a system of affirmative action or restitutionary equality that is not seen as destructive of the project of constituting citizens as equals,’ Justice O’Regan said.

Dealing with past injustice

Justice O’Regan said that a ‘great challenge’ facing South Africa and many democracies in transition from authoritarian and unjust histories was how to address the injustice of the past.

‘Generally, this needs to be resolved politically and then given legal form,’ she said. However, since the establishment of the International Criminal Court (ICC), this may depend on whether the Rome Statute governs, she added.

Justice O’Regan used the example of South Africa’s Truth and Reconciliation Commission (TRC) as a mechanism to address past injustices. She said that the TRC, which was a political solution adopted prior to the ICC system, had both strengths and weaknesses. Included in the former were the process of investigating gross human rights violations and making amnesty dependent on perpetrators acknowledging their actions, while the latter included that the definition of ‘gross human rights violations’ tended to exclude the ‘daily evil of apartheid’, and that victim redress failed to happen, without an explanation for this.

Fostering independent institutions

Justice O’Regan highlighted the need to foster independent institutions, including the courts, electoral commissions, auditors/monitors of public spending, ombuds and human rights commissions.

‘This is largely a matter of institutional culture, although constitutional design is important,’ she said, adding that the constitutional design needed to address aspects, such as tenure of office bearers, terms of appointment, jurisdiction and reporting, and institutional independence.


In conclusion, Justice O’Regan said: ‘Making an enduring constitution is not easy, and it is necessary to have broad-based political will. But skill in drafting and attention to the implications of structural design can assist in creating enduring constitutions. Yet a constitution remains in force because each new generation chooses to keep it in force, not because drafters cement it in place.’

Constitutional protection for group rights

Mr Gupta emphasised the importance of constitutional protection for group rights in his discussion on the challenges involved in protecting the rights of ethnic groups in multi-ethnic and multicultural societies.

Mr Gupta said that democracy meant ‘the rule of the majority for the time being’ and it was therefore necessary to safeguard the rights of those in both majority and minority groups.

He said that the survival of cultures was not guaranteed and, therefore, they required protection, citing international methods of protecting cultural rights, such as conventions.

Mr Gupta spoke about the nature of the rights conferred by the Indian constitution, which identified and protected group rights to ethnic groups, and referred to religious and linguistic rights in particular.

Noting that religious rights were individual rights, he questioned how it was possible to ‘draw a line between religious rights and related rights’.

Mr Gupta also discussed key decisions of the Indian courts in which they had ‘grappled with’ some of the problems presented in the past few decades. He said that Indian courts tended to afford protection ‘narrowly’ in respect of religious rights. ‘Only practices essential to the religion get protection,’ he said, adding that this posed the following questions:

  • How do you decide what is essential and what is not?
  • What does the adherent of the religion believe is essential?

‘If a judge decides what is essential, then the possibility of conflict arises,’ he added.

Mr Gupta also highlighted certain limitations that had come into existence, for example in respect of minority institutions providing education.

In conclusion, Mr Gupta said that group rights must be capable of being exercised and emphasised that they require protection.

The road to Zimbabwe’s new constitution

Mr Mhishi spoke on the proposed Zimbabwean constitution, which he said was ‘about to become law’. In doing so, he highlighted some of the provisions that were the result of a compromise, noting that he was voicing his personal views and acknowledging that others may have differing opinions.

Mr Mhishi provided some background to constitution-making in the country, noting that since independence in 1980, the Zimbabwean constitution, ‘which was a compromise in itself’, came after protracted war to end colonialism. He said the document had certain provisions entrenched in it, for example reserving seats for minority colonial rulers. He said that the last amendment to this constitution was the one that led to the inclusive government in Zimbabwe.

Mr Mhishi said that the new constitution-drafting process was intended to be completed in an 18-month period; however, so far it had taken four years.

‘Everyone insisted that the process must be people driven, but some were opposed to the process from the outset,’ he said, adding: ‘Because it was not going to be a people-driven process, the process of coming up with the constitution was a difficult one. It took four years and more than $ 45 million was spent on the process.’

He said that there were many challenges during the process, including economic constraints and ‘physical disturbances’.

‘The political influence was clear throughout the process – instead of parties campaigning, they pushed supporters on what to say. In most instances, there was no direct contribution by the people to the process,’ he added.

He said that there were also complaints that civil society had been excluded from the process.

However, he said that there were some positive aspects to the process, including that ‘the principals finally supported the processes and denounced the disruptions’, although some had been disowned by the political parties to which they belonged ‘for coming up with contrary views’, he added.

He said that the Law Society of Zimbabwe had participated in the process and had engaged experts and undertaken an outreach programme. He said that the society had drawn up a model constitution and that ‘most of the recommendations appear in the constitution proposed for adoption’.

In conclusion, he said: ‘We now have a constitution; this will be presented to parliament and we expect parliament to rubber-stamp it, as there is broad consensus.

The challenge in Zimbabwe is: Will the politicians adhere to the good things in this constitution? Is it also not going to be amended? All the parties have said: “When we come to power, we will amend it.” Is constitution-making therefore ever finished in Zimbabwe?’

Marikana and the implications for employment law

By Mapula Sedutla

The topic of conflict resolution was discussed in a session that unpacked the Lonmin Mine tragedy.

Speakers of the session were alternative dispute resolution specialist and South African attorney, John Brand; and Henry Msimang, who is part of the legal team representing the mineworkers at the Marikana Commission of Inquiry.

Mr Brand gave insight into the complexities of the situation that led to a strike by Lonmin mineworkers in the area of Marikana in August 2012, which led to the widely reported Marikana tragedy, where 44 people died. Following the tragic events that took place in Marikana, President Jacob Zuma appointed a commission of inquiry to investigate the matters arising from the incident. Mr Brand provided delegates with a tentative analysis, in his opinion, of what triggered the tragedy, the manifestations, the aggravating factors that led to it and what moderated it. Mr Brand also placed the tragedy in the broader industrial relations context. In addition, he provided delegates with facts that he said needed to be considered to view the tragedy holistically and also gave an indication of what employers can influence to avoid similar tragedies.

The conflict dynamic

  • Causes

Mr Brand said that the alleged cause of the conflict was poverty combined with mineworkers wanting to receive more pay. In his view, however, money was a small portion of what caused the conflict.

He went on to cite some of what he believed were the causes of the conflict, namely:

Working conditions: Rock drill operators work under harsh conditions. The rock drill operators are viewed as unskilled labourers and are not paid sufficiently. Labour brokers abuse them and can take up to R 5 000 from their wages. Generally, rock drill operators tend to be migrant workers, who have a home in the rural areas and another home near where they work. This means their income is thinly spent, which presents an opportunity for moneylenders to take advantage of them. Also, many of them have garnishee orders against their wages.

The social wage: The rock drill operators live in informal settlements that have no refuse removal; they do not have electricity; there is no security for their property; the area does not have a proper sewerage system; there are no schools in the area; there is no clinic or health facility in the area; they have to rely on dilapidated taxis as a form of transport; there is no running water; and the area has no roads.

The National Union of Mineworkers (NUM): The union was complacent and the Association of Mineworkers and Construction Union (AMCU) filled the vacuum that rock drill operators were feeling. They had a remote ideological approach to the situation. Also, they were not strategic, as their bureaucratic ways led to rock drill operators not trusting them.

Bargaining skills and structures: Bargaining skills in the labour context in South Africa are very adversarial and not interest-based. All parties during the bargaining process were not prepared and were ill-informed. The bargaining structures, on the other hand, were undemocratic and over-centralised.

  • Trigger

Mr Brand said that the trigger of the situation was that the Lonmin Mine offered to pay rock drill operators a premium and give them an increase. NUM responded by stating that every worker across the board must receive the same increase, as this was its policy. When the rock drill operators discovered that NUM was hindering their chances to receive an increase, they joined AMCU. AMCU enticed the drill operators as they told them that they did not have the same policy as NUM.

  • Manifestations

Mr Brand said: ‘The manifestations of the complex, multifaceted situation in Marikana took the form of disregard for the law, and procedures pre- and post the events that took place.’

‘Why is it that, 20 years into democracy, the Labour Relations Act [66 of 1995] was ignored by all parties involved – employees, employers and the unions. The strike action was not protected because the right procedures were not followed,’ said Mr Brand.

He added: ‘The mineworkers were filled with hostility and were defiant towards the authority of management and the state. They armed themselves – every shop in the area of Marikana was sold out of knives and axes. There was an orgy of violence. The emergence of a new union, AMCU, workers’ committees that were not formally constituted and the action of the police also added to the catalysts that fuelled the Marikana tragedy,’ said Mr Brand. He added that there were also allegations that arrested mineworkers were tortured.

  • Aggravators and moderators

Mr Brand said that factors that worsened the situation included poor mediation and policing, weak negotiation skills, illiteracy, divided constituents, mistrust, unrealistic expectations and past unresolved conflicts. He said moderators of the situation were church leaders and the mineworkers’ need for pay.

Some important factors

Mr Brand said that rock drill operators earned R 10 000 per month, while the average South African worker earned R 3 000 per month. He added: ‘Rock drill operators earn more than entry-level teachers in South Africa.’

The strike

Mr Msimang said that, during the strike, the employer refused to engage with the rock drill operators and wished to speak to the unions rather. He said that, at that point, the rock drill operators retreated to a hill, where they held a further meeting. ‘When they saw that the police were about to cordon them off with barbed wire, they moved from the [hill]. When they made their way towards the police, the police say they retaliated in self-defence and opened fire.’

He added: ‘The evidence that is unfolding at the commission shows that the police had a six-stage plan that included dialogue, crowd control, disarming and dispensing the crowd and [taking in] others for questioning.’

Mr Msimang said that the tactical teams deployed at Marikana and the amount of force used were contrary to the approach the police claimed they were going to take.


On the consequences of the situation, Mr Brand said: ‘The consequences of the tragedy were that a total of 44 people died and hundreds of people were injured. Contrary to media reports, the Lonmin mineworkers did not receive the 22% increase they were striking for. The second part of the 2010 wage agreements was due to kick in, which meant that the workers would receive a 10% increase anyway. Actually, the maximum increase workers received was 7,7% to the lowest grade worker. Media reports were not corrected as it suited both management and unions; this was not in fact the truth. If the figures are calculated correctly, they will show that the miners lost approximately 12% of their annual wage in the strike due to the “no work, no pay policy”. The workers lost more in their wages than what they received. Some workers received a R 2 000 bonus to return to work; however, this did not apply to the approximately 9 000 contract workers.’

The direct loss in the gold and platinum industry, Mr Brand said, amounted to R 10 billion, which resulted in a R 12,5 billion reduction in export revenue in 2012. He added that the loss brought down the gross domestic product forecast for South Africa from 3% to 2,5%. He said that attorneys should ask themselves what could be done about this “lose-lose” situation.

What should have happened

Mr Brand said that all the issues that led to the conflict in Marikana could be better regulated by the law. He said that what could be learned from the tragedy is that the situation should have been viewed holistically and the focus should not have been on the manifestations of the conflict exclusively. Underlying causes that may have triggered the situation should have been addressed. Appropriate moderators should have been put in place and not those ‘who wanted to take advantage of the situation’, said Mr Brand.

Marikana Commission of Inquiry

In respect of the commission investigating the tragedy, Mr Msimang said: ‘The commission’s terms of reference are to investigate the conduct of Lonmin Mine, AMCU, NUM, individuals and loose groupings in fermenting and/or otherwise promoting a situation of conflict and confrontation, which may have given rise to the tragic incident, whether directly or indirectly, as well as the role played by the Department of Mineral Resources or any other government department or agency in relation to the incident and whether this was appropriate in the circumstances and consistent with their duties and obligations according to law.’

He added that the commission was looking at the conduct of the South African Police Services (SAPS), in particular: The nature, extent and application of any standing orders, policy considerations, legislation or other instructions in dealing with the situation that gave rise to the incident; the precise facts and circumstances that gave rise to the use of all and any force and whether this was reasonable and justifiable in the particular circumstances; to examine the role played by SAPS through its respective units, individually and collectively, in dealing with the incident; and whether, by act or omission, it directly or indirectly caused loss of life or harm to persons or property.

This article was first published in De Rebus in 2013 (June) DR 40.