Nelson Mandela, who died last week [Dec. 5] at age 95, transformed not only the political landscape of his beloved country, but also its legal system. Under apartheid, law was an instrument of racist, rights-denying repression. Today, thanks in part to the law-trained Mandela, South Africa’s constitution and its court system showcase the powerful role that law can play in protecting liberty and justice for all.
The system of racial separation and oppression known to the world by the Afrikaans term apartheid was erected only in mid-20th century. Racial segregation and discrimination date from Dutch colonial times, yes, and were tightened piece by piece by the Union of South Africa in the first half of the 20th century. But the white supremacist National Party used law to erect a more thoroughgoing system after it came to power in 1948.
Over the next five years, South Africa’s Parliament enacted piece by piece the legal pillars of “grand apartheid.” The Population Registration Act of 1950 formalized racial classification and required race-designating identity cards for all adults. The Group Areas Act of 1950 allotted living areas by race. The Bantu Authorities Act of 1951 set the stage for the creation of the “bantustans” as phony homelands for black South Africans. Two years later, the Bantu Education Act established an unequal education system that aimed to consign blacks to lifetimes as laborers
Along the way, Parliament forbade interracial marriages (1949) and interracial sexual relations (1950). And the Suppression of Communism Act of 1950 banned any political party that subscribed to communism, which was defined so broadly as to gag opposition to apartheid as disruptive to racial harmony.
Apartheid might have been turned back in infancy but for the National Party’s success in disenfranchising multiracial “colored” voters, a foul deed accomplished despite the resistance of the country’s highest court. (Blacks and Asians had no voting rights.) The Separate Representation of Voters Act of 1951 removed coloreds from the common voters roll in Cape Province, but four voters backed by the United Party challenged it in court.
The Appeal Court ruled the law invalid because Parliament had enacted it without the two-thirds majority required to change so-called “entrenched” clauses in the constitution. Parliament responded by enacting a law allowing it to overrule decisions of the Appeal Court. The Appeal Court ruled that measure invalid as well, but the National Party countered by increasing the court from five to 11 members and then packing it with pro-Nationalist judges. A temporarily enlarged Parliament re-enacted the law in 1956. Originally, coloreds were at least allotted four seats in Parliament, but those were abolished in 1969.
The courts were obliging instruments of repression for the next four decades as exemplified by the famous Rivonia trial, where Mandela received his life prison sentence in 1965. Mandela’s release in 1990 set the stage for his election four years later as the first president of the multiracial, democratic Republic of South Africa.
With the help of a panel of professional judges, Mandela chose the 11 members of the newly established Constitutional Court of South Africa. The court was predominantly white but with three blacks and one Asian, and the white judges included Arthur Chaskalson, Mandela’s former lawyer, and other human rights veterans. As presiding judge, Chaskalson proclaimed the court’s obedience not to Parliament but to the constitution. “For the first time, the constitution trumps Parliament,” Chaskalson declared, according to the Washington Post’s account.
Not quite four months later, the Constitutional Court abolished the death penalty. The court declared in the ruling that capital punishment was inconsistent with the rights to life and dignity enshrined in the nation’s new constitution, given the arbitrariness of its imposition and the risk of error and the lack of any proven deterrence.
Since that time, the Constitutional Court has continued to issue landmark, rights-expanding decisions. The court followed its capital punishment decision with a ruling in 2001 that barred extradition of suspects from South Africa to a country where they might be subject to the death penalty.
The court in 2000 ruled that the government must provide housing relief to people living in intolerable or crisis situations. Three years later, it ruled that rights to land under customary law must be recognized and that communities dispossessed of land owned under customary law are entitled to restitution.
Along with other protections in its Bill of Rights, South Africa’s new constitution represented an important milestone for LGBT rights as the first national charter to prohibit discrimination on the basis of sexual orientation. The Constitutional Court gave that provision substance with its
ruling in 2005 by recognizing marriage rights for same-sex couples; the court gave Parliament 12 months to enact legislation, stipulating that any law be “truly and manifestly respectful of the dignity of same-sex couples.” Parliament passed conforming legislation in November 2006.
South Africa faces immense problems as it enters its third decade as a multiracial democracy: poverty, crime, and growing impatience among the black majority about persistent economic inequality. Yet Mandela’s insistence on the rule of law appears to have survived more than a decade after he relinquished office, according to John Campbell, a senior fellow for Africa policy studies at the Council on Foreign Relations. Human rights are protected, he writes in a blog post, freedom of speech absolute at least for now. “These are major democratic achievements,” Campbell concludes, “and they owe much to Nelson Mandela's vision for his beloved country.”