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South Africa: Designing New Political Institutions

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Overview

The Republic of South Africa (RSA) held its first fully democratic elections in April 1994. They were a highly visible signal that the RSA is really moving from the era of apartheid towards a democratic constitutional state. The process is an archetypal case of a negotiated transition of a regime, and as such it is of great interest to students of constitutional mechanisms.

The contributors to this book, leading South African political scientists, discuss the process, the difficulties and the achievements in the transformation of the RSA's political and legal institutions. They address various aspects of constitutional design and their interactions with social forces. They examine the new constitution, the roles of presid

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Editorial Reviews

Booknews
Addresses aspects of constitutional design and their interaction with social forces in the present-day Republic of South Africa, examining the new constitution, the roles of president and executive, the Constitutional Court, and the electoral, party, and parliamentary systems. Looks at questions of labor and corporatism, foreign relations, the armed forces, and the Reconstruction and Development program. For students of political sciences and constitutions. Annotation c. by Book News, Inc., Portland, Or.
Tracy Lightcap
The executives at Sage Publications must be gnashing their teeth over this book. It was obviously commissioned in either 1993 or 1994 when the interim constitution of 1993 was still in force in South Africa. Most of the articles in this collection analyze some aspect of that document and how it facilitates the transition to a final constitution, a transition that was to be completed with parliamentary elections in 1999. This scenario was rendered moot by the increasing tensions within the "government of national unity" set up under the 1993 constitution. As a consequence, by the time this book was published (August 1996) the final (?) constitution of the new Republic of South Africa - originally scheduled for 1999 - had already been in force for almost three months! So why take notice of a collection of papers analyzing the workings of a government already superseded by the time it was published? There are at least two good reasons. First, the changes in the South African state brought about by the new constitution are relatively minor. Most of the institutional structure of the new state was set in the Constitutional Principles included in the interim constitution. The analyses included in this book describe either initial problems with continuing institutions or problems that will continue to arise outside constitutional structures. Second, these essays give South African academic opinion a voice. One of the most frustrating aspects of studying democratic transitions is that foreigners write most readily available commentaries. Finding a useful collection of work by scholars on the ground gives us a basis for comparison that allows us to pinpoint the weaknesses and strengths (of which more anon) of their perspective. The bibliographies in the articles, uncovering rich veins of South African scholarship, are one of the main values of this book. That said, what about the essays themselves? Murray Faure and Jan-Erik Lane's informative introduction begins by citing "Institutional design versus social forces" as the theme of the book. As they point out, in the South African context this means mostly institutional design. The South Africans have placed great reliance on the capacity of constitutional devices to establish a framework for resolving their country's many economic, political, and social cleavages. The emphasis placed on analyzing the legal foundations of the new institutions in most of the papers that follow puts the economic inequalities and social cleavages noted so concisely by Faure and Lane in a less prominent role, but this only reinforces their observation. The fourteen papers they have collected take us on a wide ranging tour of the South African transition from constitutional description to electoral systems to international relations to social policy to legislative institutionalization, hitting all stops in between. I wish I could spare readers of this review this cliché, but the contributions are of variable quality. There is enough solid work, however, to repay interested readers. The papers included in this collection examine three main categories: constitutional and legal issues, political institutionalization, and public policy. Six of the papers address constitutional and legal issues. The book leads with Joh van Tonder's description of the interim 1993 constitution that he calls, correctly, "a socially engineered hybrid with eclectic and composite characteristics." The most salient of these for scholars of law and politics were: the inclusion of an extensive bill of rights with a Constitutional Court (roughly on the German pattern) to oversee its application through judicial review; a modified parliamentary government constrained by constitutional supremacy, an independent judiciary, and an indirectly elected, but responsible president; and federalism supported (but by no means established) by extensive schedules describing both exclusive and concurrent powers for central and provincial governments. (All of these have been maintained in the new constitution.) This is followed by Dirk Kotze's more historically oriented article describing how agreements concerning constitutional principles and both constitutions were made through the alliance of center parties - in this case, the African National Congress (ANC) and the National Party (NP) - against more extreme parties on their flanks. That these agreements could be reached despite their former rivalries speaks volumes about the seriousness of the situation and of the main negotiators. The structure and legal powers of some of the new institutions are addressed in other essays on this theme. Robert Schrire's paper on the presidency shows clearly how the overwhelming power of the executive developed in the years proceeding 1990 and how that power allowed the NP to, "abdicate power through a policy of stealth." His description of the presidency under the interim constitution, however, is now of historical interest only. Given the lack of support for a consociational executive it is no wonder that the new constitution has come down firmly for a presidency supported by parliamentary majorities Even the minority parties that had a stake in the GNU - the NP and the Inkatha Freedom Party - supported it only as a stopgap until some better dispensation could be reached. When none was forthcoming, they abandoned it without regret. Kieran O'Malley provides us with an interesting account of the Constitutional Court, which has survived virtually unchanged in the 1996 constitution. As he points out, the "vague and loose formulation" of fundamental rights in the interim constitution, which have survived in the final version, "leave them open to varying interpretations." In addition to interpreting the bill of rights, the Court has the power to decide on the constitutionality of executive actions by both central and provincial governments and of laws passed and bills pending in both central and provincial legislatures. Given that judicial review and justiciable civil rights are foreign to South Africa's political history, it is no wonder that concerns about judicial independence predominate in this paper! Dirk Brynard's paper on "administrative justice" is also revealing. That guarantees of administrative fairness and regularity of procedure were written into the interim constitution's bill of rights and are considered novel enough to need extensive description shows just how far the apartheid state was from a "normal country." Finally, Andre Louw examines the philosophical basis of the interim constitution. He sees the transition of South Africa from monarchical to republican government as entailing a shift in the basis of legitimacy to public consent. The papers concerning political institutionalization in South Africa are, perhaps, more to the taste of American political scientists. Murray Faure's description of the new electoral system, like other essays, is largely descriptive and historical, but, again, this is because the changes have been so great. Given the social and cultural cleavages in South Africa, the shift to a party list proportional representation system with an unrestricted franchise for both national and provincial elections is, in many ways, the biggest gamble made by the new government. Hennie Kotze provides a useful report on the interim constitution's parliament (which, with a few changes, survives today). Apparently, its inexperienced members have become acclimated to law making. Kotze also indicates that the new committee system seems to be providing opportunities for independent action by members. Susan Botha continues with an empirical overview of the history of the present political parties and of the 1994 election results. The information she presents concerning participation and party strength, thankfully disaggregated to the provincial level and including breakdowns of vote by ethnic group, is interesting. Louwrens Pretorius ends this thread with the one of the best essays in the collection, an historical overview of the development of corporatism in South African society and its political ramifications. Pretorius's study is the only one in the collection to closely examine the influence of the powerful economic interest groups in South Africa - its international business community and its burgeoning labor movement - and it does so in masterful style. Finally, there are several papers concerning the public policy of the new government. Deon Fourie examines what may be the most important question for the new state in the long run: the reformation of its armed forces. Fourie's article is reassuring concerning progress to date, but redirecting spending to social purposes while maintaining the loyalty of the professional officers and integrating the former guerrilla armies into the defense forces has got to be the tallest order facing the new government. Almost as important and just as difficult is the task of reforming the extensive South African civil service. Pierre Hugo addresses this in a study warning the new government to avoid the old order's mistake of turning the civil service into an employment agency for whichever ethnic group is in power. Robert Cameron provides a report on the implementation of the Reconstruction and Development Programme, the new state's main tool for assaulting South Africa's massive economic inequalities. Given the inexperience of the government and the magnitude of the problems involved, progress here has been encouraging. Finally, Marie Muller provides an analysis of the changes in South Africa's international relations from both regional and issue-based perspectives. Here the changes have been dramatically for the better; South Africa continues to have policy differences with other nations on different issues, but it is no longer treated as an international pariah. All these essays are informative, but there are some startling lacunae in them. The largest of these was pointed out by David Horowitz (1992): a lack of recognition of cleavages within ethnic communities. The South African scholars - perhaps because they are white themselves, perhaps because of academic or political conviction - appear to see most conflicts settling along white - black (including Asians and "Coloureds") lines. Following Faure and Lane's introduction one sees no analysis of, for instance, Xhosa dominance of ANC leadership or the Coloureds disproportionate support of the NP. Today, these intraethnic differences are subsumed by the shock of the transition and the leadership of Nelson Mandela, a committed reconciliationist. Tomorrow, if ANC begins to lose coherence, such constitutional devices as party-list proportional representation and the indirect election of presidents may have dire consequences. It would have enhanced this collection if this had been recognized and brought into the analysis. Second, there are several areas that I regret were not given coverage. There is no detailed examination of the workings of the provincial governments, which seem vital to the success of the new government. The South African Police Service is touched on by Fourie, but plans to reform it should have been given a more prominent place. Reform of the national judiciary is also not considered. This topic is particularly important since there are no provincial courts under either the 1993 or 1996 constitutions. The early experience of the national ombudsman - the "Public Protector" - would have been interesting to learn about also. But perhaps I should stop castigating the editors for the book they did not intend to produce and thank them for providing us with the useful descriptions and histories of the first stage of South Africa's transition to democracy that they did. I learned a good deal from reading Faure and Lane's book. While too specialized to be of much use as an undergraduate text, this collection could be used profitably in combination with more general works in graduate courses on democratic transitions in developing areas or on South Africa itself. If nothing else it will provide future scholars with a useful set of benchmarks for gauging the impact of legal and institutional change in South Africa as the 1996 constitution is implemented. Reference Horowitz, David. 1992. A DEMOCRATIC SOUTH AFRICA? CONSTITUTIONAL ENGINEERING IN A DIVIDED SOCIETY. Berkeley: University of California Press.
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Product Details

  • ISBN-13: 9780761953029
  • Publisher: SAGE Publications
  • Publication date: 12/4/1996
  • Pages: 288

Meet the Author

Jan-Erik Lane is Professor of Political Science at the University of Geneva.
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Table of Contents

Introduction - Jan-Erik Lane and Murray Faure
The Salient Features of the Interim Constitution - Joh J van Tonder
The New South African Constitution - Dirk Kotz[ac]e
The President and the Executive - Robert Schrire
The Constitutional Court - Kierin O'Malley
The Electoral System - Murray Faure
South Africa's Party System - Susan Botha
South Africa's Changing External Relations - Marie Muller
The New South Africa and the Armed Forces - Deon Fourie
Administrative Justice in the Public Service - Dirk J Brynard
A Public Administration Interpretation of Section 24 of the Constitution
Relations between State, Capital and Labor in South Africa - Louwrens Pretorius
Towards Corporatism?
The Politics of Affirmative Action in the Old and the New South Africa - Pierre Hugo
The Reconstruction and Development Programme - Robert Cameron
South Africa's Constitutional Development - Andr[ac]e Louw
The New Parliament - Hennie Kotz[ac]e
Transforming the Westminster Heritage
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