Appendix I: Introduction to South Africa's 1996 Bill of Rights
| Author | Pierre De Vos |
| Date | 01 June 1997 |
| DOI | 10.1177/092405199701500210 |
| Published date | 01 June 1997 |
| Subject Matter | Article |
Part C: Appendices
Appendix I: Introduction to South Africa's 1996 Bill
of
Rights
Pierre de Vas·
I Introduction
South Africa's new Bill
of
Rights, which was adopted in 1996 and came into effect in
February 1997, can arguably be described as one
of
the most progressive and far-reaching
domestic human rights documents in the world. It is a unique document, not only for the
way in which it came into existence, but also for many
of
the innovative and far-reaching
provisions it contains. Although the Bill
of
Rights reflects the specific preoccupations and
concerns
of
the South African society, those occupied with international human rights law
will find much
of
interest in its provisions. This is particularly true because its drafters
borrowed heavily from the provisions
of
the major international human rights documents
and from domestic constitutions. In this brief introduction I will try to highlight a few
of
the unique aspects
of
the Bill
of
Rights with specific reference to the historical context
within which the provisions were framed. I will also point to the various provisions
of
the
Bill
of
Rights which bestow remarkable powers on the judiciary.
II Origins
of
the Bill of Rights
The 490 members
of
the democratically elected Constitutional Assembly were mandated
by the pre-democracy 'transitional' Constitution
of
1993 to draft a 'final' Constitution for
South Africa. This Constitutional Assembly was bound by an elaborate and unique set
of
procedures set out in the 'transitional' Constitution, negotiated at the multiparty
negotiations forum in the run-up to the first democratic election
of
1994. According to
these provisions, the 'final Constitution' had to conform to a set
of
34 Constitutional
Principles negotiated at the multiparty forum. IAccording to these procedures, the
new
Constitution would have no force or effect unless the Constitutional Court -itself set up
in terms
of
the transitional Constitution -certified that all the provisions
of
the new
Constitution complied with the 34 principles contained in the 4th schedule to the interim
Constitution.' Constitutional Principle II stated that:
'Everyone
shall
enjoy
all universally accepted fundamental rights, freedoms
and
civil liberties,
which
shall be provided for and protected by entrenched
and
justiciable
provisions
in
the
constitution
... '
When the Constitutional Assembly started its work, it divided itself into various 'theme
committees', each attending to the drafting
of
certain aspects
of
the Constitution. Theme
Committee 4 was mandated to draft the Bill
of
Rights provisions. The Committee was
Senior Lecturer, Department of Public Law, University of Western Cape, South Africa.
These principles contain the basic requirements of a democratic state, along with several other principles
reflecting the particular preoccupations and political aspirations of the various political parties. They represent
the outcome of delicate negotiations between the ANC led alliance and the National Party. As such, some
of the principles seem difficult to reconcile with.
2Constitution of the Republic of South Africa Act 200 of 1993, S 71.
Netherlands Quarterly
of
Human Rights,
Vol.
15/2,
225-252,
1997.
©Netherlands Institute
of
Human Rights
(81M).
Printed in the Netherlands.
225
NQHR
2/1997
assisted by a panel
of
technical legal advisors who played amajor role in drafting the Bill
of
Rights. It were the technical advisors who determined the criteria for deciding which
rights should be regarded as 'universally accepted human rights' and who, later, to a large
extent also determined which rights actually met these criteria. The technical experts also
had a significant -sometimes even remarkable -influence in the specific formulation
of
the various rights.
It is important to note that the technical advisors gave an expansive interpretation
of
what should be included in a Bill
of
Rights as 'universally accepted human rights'. In its
first memorandum the Committee asserted that human rights should be considered to be
universally accepted whenever there is a 'widespread and general acceptance or
recognition
of
the right in question on the part
of
States'. However, the advisors stressed
that it is not necessary that all States accept the existence
of
such rights as this would give
States that object to such rights, the power
of
veto in respect
of
such rights.' According
to the Technical Committee, to determine whether there is widespread and general
acceptance
of
a right on the part
of
States, it is necessary to regard 'international human
rights treaties and the declarations
of
the organs
of
the United Nations. Their "universal
acceptance" is evidenced by the number
of
States that have ratified
them
(in the case
of
multilateral treaties) and by the number
of
States that have voted for them (in the case
of
declarations)'." While some human rights are so widely accepted by States that they form
part
of
customary international law,' most universally accepted fundamental rights are
contained in the four most important multilateral treaties and declarations, namely: the
United Nations Charter;" the Universal Declaration
of
Human Rights;' the International
Covenant on Civil and Political Rights;" and the International Covenant on Economic,
Social and Cultural
Rights,"
According to the technical experts, regional human rights treaties;'? other human
rights treaties which elaborate on the rights contained in the four treaties mentioned above,
and declarations adopted by international conferences, give additional protection and
should also be taken into account when making afinding on the universal acceptance
of
a right. According to the advisors it should further be borne in mind that 'international
conventions listed here establish courts, investigative commissions and committees to
interpret and enforce the rights contained in these conventions' and in formulating a Bill
of
Rights for the South African Constitution, the Committee should therefore also have
regard to the interpretation placed on these rights by these courts, commissions and
committees."
Opinion
of
Technical Committee (Theme Committee 4), undated memorandum on file with the author,
paragraph 3, at p. I.
Ibidem, paragraph 4, at p. 2,
Ibidem, paragraph 5, at p. 2.
Articles 55 and 56. The Charter is signed by 184 parties.
A resolution by the United Nations General Assembly, approved by 48 of the 56 Member States
of
the
United Nations in 1948,
Adopted in 1966 by 'over 120 parties including 36 African States' (as
of
31 July 1996, ratified by 134
States).
Adopted in 1966 by 'over 120 parties' (as
of31
July 1996, ratified by 134 States).
'0 The experts' memorandum mentions the European Convention for the Protection
of
Human Rights and
Fundamental Freedoms (1950), the American Convention on Human Rights (1969) and the African Charter
on Human and Peoples' Rights (1981).
II Ibidem, paragraph 9, at p. 4.
226
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