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| Title: | Undermining the constitution by constitutional means; some thoughts on the new constitutions of southern Africa |
| Author: | Hatchard, John |
| Year: | 1995 |
| Periodical: | The Comparative and International Law Journal of Southern Africa |
| Volume: | 28 |
| Issue: | 1 |
| Pages: | 21-35 |
| Language: | English |
| Geographic term: | Southern Africa |
| Subjects: | constitutions constitutional amendments |
| Abstract: | The 1990s has seen a transformation of the constitutional order in southern Africa with new constitutions in Namibia (1990), Zambia (1991), Lesotho (1993), South Africa (1994), and Malawi (1994) which all provide for the protection and promotion of fundamental rights and the rule of law, multiparty politics, and the establishment of democratic institutions. The question remains whether these 'new constitutions of southern Africa' (NCSA) are equipped to counter executive attempts to undermine their operation and effectiveness. This article provides a partial answer by examining the NCSA in three key areas: amending the constitution; use of presidential pardon; and use of emergency powers. It makes a comparison with the experience of Zimbabwe, where executive action in these areas has arguably led to the 'undermining of the constitution by constitutional means'. It shows that, in general, the safeguards in the NCSA are an improvement on earlier models, of which the Constitution of Zimbabwe is an example. Nevertheless, the legislature is not an adequate safeguard and it is important that southern African States start to reassess their constitutional safeguards. Notes, ref. |
