US Supreme Court Judge Ruth Bader Ginsburg recently praised the South African Constitution making process–over that of the United States–as an example that could be instructive for a post-revolution Egypt. Bader Ginsburg’s comments, in a wide-ranging interview with Egypt’s Al-Hayat TV — in which, BTW she repeatedly praised her own country’s Constitution — have sparked outrage among tea-partying right-wing pundits in the US.
Asked whether the Egyptian process should look to the American Constitutional model, Bader Ginsburg said:
I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa… [The South African Constitution was] a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary… It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution.
Bader Ginsburg went on to recommend the Canadian Charter on Rights and Freedoms, and the European Convention on Human Rights, as similarly instructive for a nation charting a democratic future.
This led Foreign Policy Magazine’s website to ask “Why does Ruth Ginsburg like the South African Constitution so much?”, and, in so doing, they take a side swipe at the South African state as “often [being] in violation of many of [the goals of the Constitution.]”
Senator Marco Rubio (a Republican Vice-Presidential favorite who embellished his parents’ voluntary departure from Batista’s Cuba as ‘fleeing Fidel’s revolution’), breathed new life into the controversy in a speech to the Conservative Political Action Conference, or CPAC, by attacking the Court–“So let me just say if you’re an [American] appellate lawyer, you need to brush up on your South African law, because that’s how some cases apparently are going to be decided here”– while concurrently confessing his ignorance of the issues in play: “I don’t know what the South African constitution says.”
Ginsburg is not alone, as a representative of the American legal establishment, in her admiration of the South African Constitution; Cass Sunstein, the former Harvard Professor currently heading the US Government’s Office of Information and Regulatory Affairs has written that the South African Constitution is “the most admirable constitution in the history of the world”.
In his previous life as a Community Organizer, US President Barack Obama made comments to the effect that the US constitution, while remaining “a remarkable political document” contains “flaws” representative of the “polity” that created it. The polity to which he refers being wholly white and male, and overwhelmingly, but not exclusively, Christian. The amendments undertaken to abolish slavery, and establish voting rights for women and black Americans – among others – attest to the imperfection of the original compact.
The view that the US Constitution is increasingly out of step with global constitutional trends is backed up by a recent study by two American constitutional scholars (covered by Adam Liptak of The New York Times here) who – having analyzed 729 constitutions adopted by 188 countries from 1946 to 2006 – found that since the beginning of the 21st century, there has been a precipitous decline in the use of the American Constitution as precedent, to the extent that “the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now” than any time in the past 60 years.
The South African Constitution and the emerging rights jurisprudence of the Constitutional Court are, demonstrably, influential. In 2009 when I was on assignment in the Maldives to assist human rights and civil society organizations in the aftermath of their democratic breakthrough (now sadly reversed) I was amazed to find the South African Bill of Rights repeated almost word for word in their founding document. Moreover, the decision in India of the High Court of Delhi to strike down sodomy laws drew extensively from the majority judgement penned by Justice Albie Sachs on gay marriage, and other decisions of the Court relating to equality. Similarly, the United Nations Human Rights committee, in their analysis of the conditions of death row inmates, drew on the Court’s discussion of human dignity in their dismissal of the death penalty. Today, South African Justices retired from the Constitutional Court are sought after for visiting positions at some of the most prestigious international law schools.
As for Foreign Policy’s glib dismissal of the South African government’s record in upholding the Constitution, it is a matter of record that Thabo Mbeki’s AIDS madness was stemmed through a range of cases brought before the Court on the part of the Treatment Action Campaign, government was compelled by the Court to pass legislation to legalise unions between same sex partners, and a litany of cases–Soobramoney (1998), Grootboom (2001), Treatment Action Campaign (2002), Modderklip (2005) and Olivia Road (2008)–have guided government’s responsibilities in upholding the social and economic rights contained in the Bill of Rights. It is a matter of nuance, but the South African Government was not “violating” the Constitution in these cases, but was found by the Court to have failed the test of “acting reasonably” in upholding the Constitutional imperative to “progressively realise” social and economic rights “within its available resources”.
A more compelling argument could be made that the rush to personal enrichment banally represented by members of the South African government and other elites – corrupt or not – perpetuates the suffering of millions of the poor, while concurrently re-emphasizing the structural indignity of poverty. The advent of Mbeki’s AIDS denialism, the crass attempts by the Government to squash investigations into the Arms Deal, the rise of the ‘tender-preneurs’, and the undermining of Parliament’s role in executive oversight (etcetera), have ushered on to the stage a new South African politics that can less easily be upheld as a “model” for new democracies to follow.