Another Approach to Constitutional Issues

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Unlike the United States, South Africa has a special Constitutional Court devoted solely to hearing matters arising under the constitution.  The Constitutional Court opened on February 14, 1995 and has 11 members.  These members are appointed by the President after consultation with the Chief Justice and leaders of the political parties in Parliament.  The Justices who serve nonrenewable 12 to 15 year terms are a mix of academics, advocates and lower court judges.  The Judges sit in Braamfontein and wear distinctive green robes.

 

Americans may be interested in knowing about some of the landmark cases this court has already addressed in its short history.  I mention just two here.

 

The Death Penalty:  Although much debate ensued when drafting the constitution about the death penalty, the drafters chose not to decide whether it would be permitted in South Africa.  The Constitutional Court abolished the death penalty during one of the first cases heard by it in 1995.  The decision can be found at http://www.constitutionalcourt.org.za/uhtbin/cgisirsi/20080415073642/SIRSI/0/520/J-CCT3-94

 

Gay Marriage: The common law definition and section 30(1) of the Marriage Act of 1961 were ruled unconstitutional because they did not permit same-sex couples to enjoy the same status, entitlements and responsibilities accorded to married heterosexual couples.  To learn more about the case go to http://www.constitutionalcourt.org.za/uhtbin/cgisirsi/20080415075522/SIRSI/0/520/S-CCT60-04.

 

Many more interesting cases can be found at http://www.constitutionalcourt.org.za/site/thecourt/history.htm#cases.  Some of the issues addressed involve the right to housing, right to health care and access to HIV/Aids treatment, and the right of prisoners to vote.  For those of you interested, this website also gives an excellent history and overview of the South African Constitutional Court.  I found it fascinating as the Court is dealing with many issues and topics currently raging in the United States.  Seeing another nation’s perspectives on these topics may make our debates more meaningful.