Self-Realisation, Human Rights, and Separation of Powers: A Democracy-Seeking Approach

• Jurisdiction: South Africa
• Pages: 445-470
• Published date: 27 May 2019
• Date: 27 May 2019
• Author: Karl Klare

445

SELF-REALISATION, HUMAN RIGHTS, AND

SEPARATION OF POWERS: A DEMOCRACY-

SEEKING APPROACH*

Karl Klare

BA MA JD

George J & Kathleen Waters Matthews Distinguished University Professor

Northeastern University School of Law**

1 A democracy-seeking a pproach to separation of powers

I chose separation of powers as my topic because of its cr itical implications

for the realisation of human right s, particularly social and economic rights , in

progressive constitutional de mocracies like South Africa.1

Along the miraculous pat h they walked from the time of Nelson Mandela’s

release in 1990 t o the nal constitut ional settlement of 1996, South Af ricans

took three points of depa rture that were not – and probably could not have been

– entirely foreseen. South Af ricans chose constitutional democrac y instead of

a majoritarian, popu list model; they resolved that political demo cracy and

socio-economic de mocracy are mutually con stitutive and inse parable; and

they embraced a tran sformative constit utional project to bring i nto being “a

society based on democrat ic values, social justice and fu ndamental huma n

rights” that “[i]mprove[s] the quality of life of all citizens and free[s] the

potential of each person”.2 These and other in novations of the Constitution

of the Republic of South Africa, 1996 (“Constitution”) coalesce d to project

an advanced conception of democr acy, one that illuminates t he social and

institutional sup ports human s need in order to realise t heir potential, to self-

determine t heir lives, and to enjoy authentic experiences of freedom.

It took years for these choices to cryst allise, and South Afr icans still

struggle with t heir implications today. But once made, these choices were

decisive. I see no turni ng back. I hope it is not too optimistic of me to say that

* This lectu re was delivered on the occasion of t he Stellenbosch Fac ulty of Law and HF O ppenheimer

Chair’s tenth An nual Human Rights lect ure held on 20 Augu st 2015. The faculty ack nowledges with

gratitud e the sponsorship of Webbe r Wentzel for this annua l event.

** Th is is a lightly revised tex t of my Annual Human Rig hts Law Lecture host ed by the HF Oppenhei mer

Chair in Hum an Rights Law, Faculty of Law, Univer sity of Stellenbosch, del ivered on 20 August 2015. I

am most grate ful to Dean Sonia Hu man and the Stelle nbosch law faculty a nd especially to my col league,

interlocuto r, co-worker, and frien d of over 20 years, Professor S andra Liebenber g, for the great honou r of

being invite d to deliver this lectu re. I am truly humbled b y the unexpected pr ivilege of being permit ted

to stand in th e footsteps of the prior le cturers includ ing Chief Justices Piu s Langa, Sandile Ngcobo, a nd

Mogoeng wa Mogoeng; De puty Chief Just ice Dikgang Mose neke; Justices Edw in Cameron, J Y Mokgoro,

and Kate O’Regan; P ublic Protector TN Madons ela; and Advocate G eoff Budlende r SC. At best, my

contribut ion will pale in compa rison to any of their s.

1 The 2010 Human Rights Law lect ure also focus ed on separation of p owers. See S Ngcobo “Sout h Africa’s

Transformat ive Constitution: Towards a n Appropriate Doct rine of Separatio n of Powers” (2011) 22 S tell

LR 37.

2 Preamble of the Constit ution.

(2015) 26 Stell LR 445

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a culture of constit utionalism built on these foundat ions has sunk dee p roots

in South Africa. T his is a source of great hope for the future des pite stubborn

challenges that persist.

Yet with the utmost respect, jur ists, lawyers, and public gures have

sometimes been slow to gras p the implications of South Afr ica’s constitu-

tional choices. Th is is particula rly so regarding separat ion of powers. Too

often, South Afr ican jurists and com mentators default back to an achronistic

analytics suitable to conventional a nd less robust conceptions of democra cy

and to constitutions la cking in tra nsformative ambition. Sometimes they

invoke analytically empty a nd self-cancelling propositions s uch as the truism

that courts mu st not intrude in de cision making by other branches except

when it is their duty to do so in orde r to give effect to the Constitution.3

Separation of powers principles should be valued not for thei r own sake

but for what they contribute to achievi ng more fundame ntal values given by

the Constitution, na mely, democracy, human dignity, equality, freedom,4 a nd

accountable, responsive and open govern ment.5 We sho uld no t be sa ti se d wit h

a free-oating discourse of separation of powers based on vintage conceptions

of checks-and-balances, in stitutional compete nce, and simplistic binar ies.

Separation-of-powers analysis must be u nderstood as a democr acy-seeking

project – a process of working out a nd inst antiating in a context-specic

manner the in novative and transformat ive vision of democracy embodied in

the South African C onstitution.

I will attempt to make two main points. The rst is su bstantive. The choices

South Africans m ade in 1996 greatly expanded the cluster of values, policies,

and institutiona l considerations implicated by sepa ration of powers. In this

enlarged optic, democra cy includes conceptions of self-governance and

human self-realisation that go beyond the t raditional discourse of checks-and-

balances and the tr ite division of government into legislative, executive, and

judicial branches. The Const itution introduce s new governance relationships,

new sources of legitimate political author ity, and a modernized c onception

of government by majority rule. Beyond thi s, the Constitution ack nowledges

as the supreme responsibilit y of democratic societies a duty t o nurtu re in all

human beings their i nherent but often blocked or underdeveloped capa cities

for self-governance and self-realisation in political a nd personal life. All of

this greatly complicates t he separation-of-powers picture.

My second point is primar ily analytical, and I b elieve it merits

consideration even if you are sceptical of my expansive view of democra cy

and self-governance. The concept ual tools South Africa n jurists now use to

address separ ation-of-powers questions are ina dequate to a rights-r ich and

transformative Const itution. We have had several brilliant judg ments from

the Constitutional Cou rt and other cou rts and lately a great de al of political

and media at tention to separation of powers. Yet the judgme nts remain lled

3 See, eg Mazibuko v Sisulu 2013 6 SA 2 49 (C C) para 134 (per Jafta J) (“t he principle of separation of

powers forbids th e Judiciary fro m intervenin g in matters th at fall within th e domain of Parliame nt except

where inter vention is mandate d by the Constitut ion”) [note omitted].

4 S 7(1) of t he Constitution .

5 S 1(d).

446 STELL LR 2015 3

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