Africa's Constitutional Court Research Articles

Introduction to Special Feature on Chérif Keïta

Introduction to Special Feature on Chérif Keïta Dianna Bell (bio) KEYWORDS Mande studies, Mali, Francophone West Africa, education, Francophone studies MOTS-CLÉS Études mandé, Mali, Afrique de l'Ouest francophone, éducation, études francophones By the time I met Chérif Keïta, the William H. Laird Professor of French and the Liberal Arts at Carleton College, I had heard his name so often from people working in Mande Studies that I anticipated the meeting with great intimidation. Yet, as we exchanged greetings, I felt instantly as though I were reconnecting with an old friend. Of his many achievements, the way that Keïta brings people together is one of his best attributes. And I quickly learned that when you are with Chérif, you are always with the same person; whether he is buying a rotisserie chicken from a deli counter or speaking with a member of South Africa's Constitutional Court, Keïta is the same person, and he treats everyone with the same degree of respect while sharing his playful charisma. He has a talent for making people feel heard, accepted, important, and included. As the following reflections attest, once a person has experienced these feelings, and the sense of confidence they offer, it has the potential to change the course of one's life. Following a short biographical overview of Keïta's professional life, this special tribute section offers some of the thoughts and experiences of those whose lives have been, in some way, shaped by Chérif Keïta. This tribute would be remiss to not briefly stray from Mande Studies in order to acknowledge the documentary film work that Keïta has taken on in recent years. In terms of Keïta's work in South Africa, the trilogy of documentaries that he made about Reverend John Langalibalele Dube offer fresh information and unique stylistic presentation about Dube, the first President-General of the African [End Page 175] National Congress (ANC), and a constellation of his little-known yet important associates. But it is the selflessness of his final documentary, uKukhumbula uNokutela: Remembering Nokutela (2014), that stands out to the observer as the most exquisite and generous type of scholarship. It was not enough for Keïta to lift the veil that obscured John Dube's first wife, Nokutela Mdima, for almost a century after her untimely death. Keïta looked deeper, wondering especially where this woman was buried, eventually determining that he needed to find her unmarked grave, which he did, and then properly memorializing her for posterity. If Nokutela's rightful place among the South African liberation heroes is finally recognized, it is because Keïta brought her body, her gravesite, out of obscurity and placed her to rest with her fellow South African freedom fighters. I have thought a lot about why Chérif Keïta did this, especially knowing the challenge he was up against in this undertaking, and then I had an epiphany. Once, I asked Keïta about his first memory, and he told me that he remembers sitting on a type of bucket seat that was mounted on the handles of his father's bicycle. His father used to put him in the seat, with his small legs hanging on either side of the bike's wheels, and the two of them would ride around Bamako, neighborhood after neighborhood, to greet friends and family. In essence, Keïta's first memories involve his seeing the world face forward, following no one, but with plenty of support behind him. In my view, this is the gift that he gives and continues to model: looking at the world and at situations with fresh eyes, unblocked and unencumbered by those who have come before him. The essays to follow demonstrate how Keïta has encouraged his students to approach life and their scholarship in the same way. Keïta has no interest in creating clones of himself. Rather, he sets people up front, as his father did when he placed his young son on the handles of his bicycle. Like his father, Keïta invites people to see the world for themselves. [End Page 176] Dianna Bell...

Framing human dignity: visual jurisprudence at South Africa's Constitutional Court

The Constitutional Court of South Africa is a unique space by international comparison because it houses a large visual art collection developed by and for the court. The purpose of this article is to look at the connections between human dignity and art at the Constitutional Court. Is the performance of dignity in the art collection a utopian ideal, achievable objective, or unrealised potential? I argue that the art collection is a kind of visual jurisprudence that responds to, but also comprises, conceptions of human dignity as a right, a value and a touchstone of democracy — conceptions that are closely entwined with South Africa's human rights governance, but that manifest in very different ways. At the same time that human dignity becomes realised by the spatial transformation of the site of the court, it remains in the art collection something that must ever be worked towards. This article arises out of six months of participant observation fieldwork at the Constitutional Court, conducting 54 semi-structured interviews with people involved in the collection.

Afrique du Sud. The "right to be different" : the same-sex marriage judgment of South Africa's Constitutional Court

Afrique du Sud. The "right to be different" : the same-sex marriage judgment of South Africa's Constitutional Court

Women as a Sign of the New? Appointments to South Africa's Constitutional Court since 1994

The aim of the article is to develop our understanding of the role bodies play in processes of institutional change. It does so through developing an approach to the politics of institutional newness that highlights the way in which raced and gendered bodies can become entangled with claims to, or judgements of, “being new.” These questions are explored through South Africa's Constitutional Court, newly established as part of South Africa's transition to democracy in the 1990s and at the center of the broader claims being made about the creation of a new democratic, nonracial, and non-sexist South Africa. Focusing on judicial appointments to the Constitutional Court since 1994, the article draws attention to the ways in which historically excluded bodies, women and black men, have been included into this new space within the judiciary. It is argued that exploring the ways in which institutions lay claim to “being new” through the bodies of historically excluded groups is important for our understanding of the dynamics of institutional change being constituted.

Justice & Memory: South Africa's Constitutional Court

In a society such as South Africa in which the past has been deeply unjust, and in which the law and judges have been central to that injustice, establishing a shared conception of justice is particularly hard. There are four important strands of history and memory that affect the conception of justice in democratic, post-apartheid South Africa. Two of these, the role of law in the implementation of apartheid, and the grant of amnesty to perpetrators of gross human rights violations, are strands of memory that tend to undermine the establishment of a shared expectation of justice through law. Two others, the deeprooted cultural practice of justice in traditional southern African communities, and the use of law in the struggle against apartheid, support an expectation of justice in our new order. Lawyers and judges striving to establish a just new order must be mindful of these strands of memory that speak to the relationship between law and justice.

In the Name of Comparative Constitutional Jurisprudence: The Consideration of German Precedents by South African Constitutional Court Judges

Judges involved in constitutional adjudication often engage in comparative analyses of foreign cases. The judges of South Africa's Constitutional Court [hereinafter Constitutional Court] do so, too. The phenomenon has been given many names such as “transjudicialism,” “transjudicial communication,” “constitutionalist dialogue,” “judicial globalization,” “constitutional cross-fertilization,” “transnational contextualization,” “globalization of judgment,” “globalization of national courts,” “constitutional borrowing,” “constitutional comparativism,” and “judicial comparativism.” All these terms have merit, especially within their appropriate context, but for the purposes of this contribution we will use the term “comparative constitutional jurisprudence” to name the phenomenon we wish to describe and discuss. First, in the South African context, the terms “dialogue,” “cross-fertilization,” and “globalization” do not reflect the true nature of the exercises in drawing comparisons in the South African Constitutional Court. These terms imply a reciprocal dialogue between two or more courts from different jurisdictions. It is evident, however, that the South African Constitutional Court has been considering far more foreign jurisprudence than any non-South African constitutional court has been considering South African jurisprudence—in other words, this has largely been a case of one-way traffic.S v. Makwanyane, in many ways the inaugural decision of the Constitutional Court, contains 220 foreign case citations from 11 countries and three supranational courts. To our knowledge no other foreign court can boast a comparable statistic.

Arthur Chaskalson (1931–2012): Former Chief Justice of South Africa

Arthur Chaskalson passed away on 01 December 2012. Born on 24 November 1931, he was 81 years old. After being appointed as the first President of South Africa's Constitutional Court when it was established in 1994, he assumed the position of Chief Justice of the country in 2001, a position he occupied until his retirement in June 2005.

The South African Police Service Amendment Bill: Possible Compliance with Glenister v President of the Republic of South Africa

In a groundbreaking judgment of Glenister v President of the Republic of South Africa, South Africa's Constitutional Court found that the abolition of the Scorpions, a special corruption fighting unit, and its replacement with the Hawks, a far less independent body, was unconstitutional as the new body lacked the requisite independence to protect it from political influence and interference. The South African Parliament was given the opportunity to rectify this problem. This submission - made to Parliament - argues that the draft legislation purporting to give effect to the Glenister judgment fell short of the requirements set in that judgment.

Realizing a Constitutional Social Right - Cultural Transformation, Deep Institutional Reform, and the Roles of Advocacy and Adjudication

The South African case of Minister of Health v. Treatment Action Campaign (2002) may be the world's best known recent social decision. Usually studied in terms of doctrine and remedy, the decision has been praised or blamed for its cautious approach to defining and enforcing social rights. But neither the court's approach to doctrine and remedy nor the case's significance for social advocacy and constitutional theory can be understood apart from the movement-building, cultural transformations and institutional reform strategies that shaped both the litigation and the Constitutional Court's response. This draft book chapter, drawing on primary research and extensive conversations with Treatment Action Campaign's leaders and lawyers, offers an empirically rich, theoretically informed account of these more complex dimensions of the 2002 case, its setting and its aftermath, to the present. This richer narrative analyzes the work of social advocates and social movement in creating political and institutional contexts that enabled seemingly gingerly judicial review and narrow judicial remedies to promote broad and deep reforms in social provision - bringing a constitutional social right to earth. The narrative draws together realms that constitutional theory usually keeps apart: cultural transformations in constitutional meaning, interpretations, and rights-bearing identities wrought by successful social movements; and institutional reforms and innovations produced by successful collaborations among courts, social movements, and other social and political actors. Theorized separately in constitutional scholarship, as practices on behalf of the dispossessed, these different kinds of change depend on one another. We call this a polity-based approach to social advocacy and contrast it with other approaches. At once a NGO and a social movement, Treatment Action Campaign (TAC) led the decade-long struggle to prod the South African government to provide life-saving anti-retroviral to hundreds of thousands of HIV/AIDS sufferers in the nation's public healthcare system. It prevailed despite the obdurate resistance of the nation's President and most of the African National Congress leadership. TAC made the polity and not the courts its chief sphere for claims. It raised broad politico-constitutional claims and pursued broad programmatic changes and institutional innovations outside the courts, while pursuing a narrow legal-constitutional strategy. Melding the nation's new Bill of Rights with a grammar of protest and cultural contention inherited from the Anti-Apartheid movement and grass-roots empowerment and treatment literacy strategies culled from around the world, TAC built up hundreds of local branches and a poor people's social movement among HIV/AIDS sufferers. Treatment Literacy combined with rights education enabled poor South Africans with HIV/AIDS to participate in and make demands on their own and care - and to remake themselves into rights-bearing members of local communities, activist organizations and larger publics. By holding Treatment Literacy workshops not only in hospitals and clinics but in countless schools, churches, union halls and workplaces, TAC also succeeded in providing South Africans with a new public vocabulary for understanding and reckoning with the pandemic in the face of official HIV/AIDS denialism. At the same time, TAC's attorneys, activists, and its academic, NGO and professional allies pushed forward policy initiatives, programmatic alternatives and institutional experiments at every level of healthcare governance. TAC used litigation in service of these many-sided strategies to open up policy-making processes, to fashion democratic and pro-poor programs and policies, to prod government to implement them and to monitor its progress. While it used litigation sparingly, TAC's court victories provided invaluable political leverage and moral authority - more powerfully so than the scholarly literature of juris-skeptics or even juris-optimists would predict. TAC's polity-centered use of litigation, we'll see, has suited and helped shape the Constitutional Court's own understanding of the judicial role in adjudicating and realizing constitutional social via iterative encounters and collaborations with civil society and state actors. Much that is said about Treatment Action Campaign and South Africa's Constitutional Court emphasizes the distinctiveness of South African experience. But it's a mistake to overlook the more generalizable features of the strategies recounted here. Like many constitutional courts around the globe, South Africa's prefers to husband its political capital, to intervene modestly and in compelling cases, and to shun sweeping programmatic decrees. It prefers to help and rely upon civil society organizations and reform-minded political actors to develop the political and institutional contexts that make relatively modest, episodic and iterative judicial interventions yield maximal effects. This vision of judicial collaboration with civil society organizations and reform-minded state actors comports with what constitutional courts elsewhere seem willing to hazard in the name of social rights. Thus, this contexts-creating craft is worth cultivating in many places; and by recounting TAC's and the South African Court's collaboration in some detail, we have tried to convey what we have learned about it.

The Reconstruction of Memory at Constitution Hill

Abstract The Old Fort Prison was Johannesburg's main place of incarceration of prisoners for eight decades, including during the apartheid era. Virtually every important political leader in South African history, including Mahatma Gandhi, Nelson Mandela, Winnie Mandela, and Fatima Meer, as well as scores of ordinary South Africans caught in the web of colonial and apartheid repression, were imprisoned there. Today, this prison complex is home to South Africa's Constitutional Court. Constitution Hill has brought former prisoners to “map” their memories of the site. They also host public dialogues on the injustices of the past, as typified by the prisons at Number Four, as well as people's understanding of their constitutional needs and rights, and their experiences of the country's young constitutional democracy.

Human Rights and Democracy – A New Global Debate: Reflections on the First Ten Years of South Africa's Constitutional Court

It is more than ten years since our new constitutional era dawned, and nearly ten years since the Constitutional Court was established. It is a fitting time then to reflect upon those first ten years: what have been the achievements, and what challenges remain for the future.