STUDY UNIT 3: CONSTITUTION & FUNDAMENTAL RIGHTS Flashcards
DEFINE CONSTITUTION
a document in which the structure & functioning of an organization are regulated
it regulates people who fulfil constitutional functions & relationships between the state & citizens
its a contract between the citizens as they create a state & transfer power to it & accept its authority
TYPES OF CONSTITUTIONS
written/unwritten
flexible/inflexible
unitary/federal
sovereign/subordinate
HISTORY OF S.A CONSTITUTION
S.A constitution is regarded as transformative as it moved from an authoritative system to a more just system
before 1910 it was a Dutch government then divided by the Great Trek that divided the Boer & British constitution
THE 1910 UNIFICATION
the British formed the constitution of the union under a unitary state where only whites were considered
the aim was to amend issues of reconciliation, language, federation or union & native question
the courts were subservient to parliament
THE EMERGENCE OF THE REPUBLIC: 1961
it was formulated by the National Party to deviate from British authority then it was disregarded by common-wealth due to apartheid acts then was a republic after monarchy & the president became head of the state
THE 1983 CONSTITUTION
it arose due to conflict in the National Party
it excluded blacks from the assemblies called Tricameral Parliament & whites were the executive, followed by Indians then coloreds were representatives
the cabinet & head of state had the executive authority
INTERIM CONSTITUTION: 1993
the aim was to make S.A democratic whereby multi-party negotiations took place as it came into place in 1994
it allowed all S.Ans to vote making the constitution the apex law, division of 9 provinces, proportional voting, multi party cabinet & spheres of legislative functions were created
FINAL CONSTITUTION 1996
the constitution was finalized in 96 & certified in 4 FEB 97
CONSTITUTIONAL AMENDMENTS
by 2018 its been amended 17 times
the 14th time the ConCourt was made the Highest court of all matters
the 17th amendment made ConCourt the highest court, decides the constitutional matters & it has the final decision on matters within its jurisdiction
SIMILARITIES OF INTERIM & FINAL CONSTITUTION
entails basic human rights that are in BOR
moved from adult suffrage to allowing all adults a right to vote
is against sexism & racialism
has spheres of gov. that bring people closer to the gov & constitution
TRANSFORMATIVE CONSTITUTIONALISM: KARL KLARE THEORY
the aim of the new constitution is to transform S.A society
it is still yet to be enacted, interpreted & enforced in the long run
its aim is to transform the country’s political & social institutions along with power relationships in a democratic, participatory & egalitarian direction
the transformation must happen with law that’s w/o violence, through revolutions & the idea is to have a highly egalitarian, caring & multicultural community governed by democracy
TRANSFORMATIVE CONSTITUTIONALISM: PIUS LANGA
the initial aim is to restore & heal the wounds of the past
the constitution aims to engender a culture of rights, meaning a culture of respect for human life & dignity based on Constitutional values
it includes justiciable socio-economic rights & substantive equality
includes a legal reasoning that’s inclusive of law & morality
HOW CAN TRANSFORMATIVE CONSTITUTIONALISM BE ACHIEVED
community based on substantive equality
eradication of discrimination
development of equal opportunities
move from a culture of authority to a culture of justification
new order of persuasion, not coercion
using law to ensure a society moves to a better version of itself.
BILL OF RIGHTS PROVISION
a right can be enforced & adjudicated upon in court
provides that everyone is equal equal before the law and prohibits discrimination on wide variety of grounds
grants rights that impose negative & positive obligations on the state
NEGATIVE & POSITIVE OBLIGATIONS ON STATE BY B.O.R
negative obligations refer to prohibiting the state from interfering with the individual rights unlawfully
positive obligations refer to obliging the state to take lawful steps to fulfil human rights
DEFINITION OF HUMAN RIGHTS
UN definition: rights inherent in our nature and without them we cannot live as human beings.
they are based on humankind’s demand for life in which inherent dignity and worth of each human being will receive respect and protection.
Indivisible: All have same basic characteristics.
Interdependent: Full enjoyment depends on the possession of all other rights.
Inalienable: Individuals cannot give them up and they cannot be taken away.
INTERNATIONAL HUMAN RIGHTS
these were compiled by the U.N in 1945 to promote protection of human rights & peace
these rights are subjective as they can refer to protection of women & children’s rights, refugees & minority groups
INTERNATIONAL SOURCES FOR HUMAN RIGHTS
Universal Declaration of Human Rights (UDHR), 1948 is the first source.
represented first effort by international community to limit powers of states by placing obligation on states to protect and promote these rights.
does not place a legal obligation on states.
International Covenant on Civil and Political Rights, 1966: the document that bound countries that agree to UDHR
International Covenant on Economic, Social and Cultural Rights, 1966: legally binding on states that signed.
these were established mechanisms to ensure that state parties comply with obligations.
REGIONAL BASED HUMAN RIGHTS
European Human Rights system, Inter-American & African Human Rights
all these regions are interrelated & they cowork to form a framework for region based problems
DIFFERENCE BETWEEN FUNDAMENTAL & HUMAN RIGHTS
fundamental rights refer to those that are for a particular country for its citizens
human rights refer to rights applicable to all human in every nation
thus the difference is the geography
CLASSIFICATION OF RIGHTS
civil & political rights- protects people from unlawful interference by state & guarantee ability to participate in civil & political life
social & economic rights-impose obligations on state to take positive steps to provide citizens w/ resources & service sto endorse decent living
DISTINCTION OF GENERATIONS & RIGHTS
first gen-blue rights-traditional, civil & political
sec gen-red rights-social & economic rights
third gen-green rights-self determination, development & enviro rights
OPERATIONAL PROVISIONS OF B.O.R & 3 STAGES
procedural stage: courts answer who is entitled to claim & bound by fundamental rights
substantive stage: courts determine meaning of the laws, which right is infringed & if infringement is justifiable
remedies stage: the courts decide on the most appropriate remedy
OPERATIONAL PROVISIONS OF B.O.R & 3 STAGES
procedural stage: courts answer who is entitled to claim & bound by fundamental rights
substantive stage: courts determine meaning of the laws, which right is infringed & if infringement is justifiable
remedies stage: the courts decide on the most appropriate remedy
CASE LAW: Centre for Child Law v Minister of Basic Education
Case was heard in the High Court of the Eastern cape.
it was contended that no child may be barred from education, even if the child is undocumented (illegal foreigners).
the court contended that the right to basic education is enshrined without any qualification in section 29 of the Constitution.
thus it was decided that EVERY child in S.A is allowed a chance to be in school regardless of nationality they belong to
PROCEDURAL STAGE: APPLICATION OF LAW
horizontal application: meant for between citizens application
vertical application: refers to state & citizens
not all B.O.R bind all citizens but its always binding on the state
