Constitutional Supremacy versus Parliamentary Supremacy: Which Way for South Africa Post the Elections?

By: Stanley Ehiane

In the complex realm of governance, two essential concepts influence a country’s power dynamics: parliamentary supremacy and constitutional supremacy. Which ideal should come first has been a source of heated debate and contention in South Africa, a country with a long history of combating injustice and bigotry. South Africa must assess how these opposing philosophies will affect its democratic institutions and the protection of basic rights as it moves forward.

Under South Africa’s parliamentary supremacist system, parliament has traditionally held the highest level of authority. Parliament enacted laws that were considered supreme and had few methods of being reversed or contested. During the apartheid era, Parliament passed discriminatory legislation that enforced racial segregation and denied most Black people the ability to vote. South Africa transitioned to a constitutional supremacy system in 1996 when apartheid was abolished, and a new democratic constitution was ratified. The articles of the Constitution became the supreme law of the nation, and all legislation, even those passed by Parliament, had to follow them. The Constitution also includes a Bill of Rights, which assures that every South African has access to basic freedoms and human rights. The courts can preserve fundamental rights, even if they contradict laws passed by Parliament.

Parliamentary supremacy refers to a legal system in which the parliament is the ultimate authority. This indicates that no other institution has the right to overturn the legislature’s decision to create, amend, or repeal any statute. This technique enables elected representatives to easily alter the laws, allowing for greater flexibility and agility in responding to changing circumstances. It does, however, entail the possibility of the ruling party in parliament abusing its authority. This philosophy is embodied by South Africa’s Westminster system of government, which it inherited from its colonial past. In this setup, the parliament has extensive jurisdiction, including the unfettered ability to enact, amend, and repeal laws.

The idea of constitutional supremacy holds that the Constitution is the ultimate legal authority. All legislation, including those approved by parliament, must adhere to the constitution. Constitutions usually emphasise the protection of individual liberties, the division of powers, and checks and balances. Because the court has the jurisdiction to nullify legislation that violates the Constitution, this system provides stability, predictability, and protection of fundamental rights. However, it may result in a rigid legal system that makes it difficult to reform laws without amending the Constitution.

Thus, in many democratic countries, the principle of “Supremacy of the Constitution” serves as a check on the government’s authority, ensuring that it stays within the confines set by the Constitution. This theory gained hold in South Africa when the post-apartheid Constitution was adopted in 1996, which created a comprehensive foundation for democracy, equality, and human rights. The Constitution created a system of checks and balances by defining the powers of the president, legislature, and judiciary, as well as providing for an independent judiciary to defend the rights of citizens.  The basic contrast between constitutional supremacy and parliamentary sovereignty is where ultimate legislative authority lies. The legislature is under parliamentary sovereignty, whereas the state constitution is under constitutional supremacy.

The option between parliamentary supremacy and constitutional supremacy is determined by a country’s aims, ideals, and historical context, such as South Africa. Both systems have benefits and drawbacks. Following the end of apartheid, South Africa transitioned from parliamentary to constitutional governance. The Constitution is currently the country’s highest legal authority, and its provisions apply to all levels of government, including Parliament.  Between 1994 and 1996, the two houses of parliament worked together as a constitutional assembly to create South Africa’s constitution. The procedure included a countrywide public participation campaign that solicited public feedback. The 1996 adoption of South Africa’s Constitution is regarded as one of the world’s most progressive. It protects several rights, including free expression, equality, and access to healthcare and education. Because of the supremacy of the constitution, these rights are protected and difficult for the government or legislature to restrict.

Parliamentary sovereignty gives the legislature free ability to create and alter laws; this system is similar to the Westminster system used in the United Kingdom and South Africa during apartheid. South Africa’s transition from apartheid to democracy was arduous and multifaceted. Constitutional supremacy has helped to encourage nation-building, reconciliation, and social justice by providing a legal framework for redressing historical injustices and furthering equality for all people. Unlike the United Kingdom, South Africa is not a parliamentary democracy.  To put it another way, neither the parliament nor the UK parliament are sovereign. Rather, South Africa is a constitutional democracy with among of the world’s most robust statutory safeguards for minority rights. That is, a written constitution restricts the authority of the legislative and the executive branch. Throughout South Africa’s democratic transition, the clash between these two concepts has been evident. One of the most notable instances was the Constitutional Court’s judgement in 2016 to overrule Parliament’s determination to hold President Jacob Zuma accountable for squandering public funds for personal gain. The court’s decision reaffirmed the Constitution’s supremacy over acts of parliament, emphasising the significance of accountability and the rule of law.

In the context of South African democracy, the option between parliamentary supremacy and constitutional supremacy has far-reaching consequences for law and order, government, and the preservation of fundamental rights. Detractors argue that an overemphasis on constitutional supremacy may jeopardise the concept of popular sovereignty as represented by elected members of parliament. They contend that an overly intrusive court might infiltrate the legislative branch and steal the people’s democratic mandate. On the other hand, proponents of constitutional supremacy argue that a robust constitution is necessary for protecting individual rights and decreasing the likelihood of state abuse of power. They argue that in the absence of a strong constitutional framework, the rights of minorities and marginalised groups may be jeopardised by the whims of fleeting political majorities. Furthermore, they argue that constitutionalism fosters predictability, stability, and respect for the law, all of which are necessary for social cohesion and long-term progress.

Constitutional supremacy is often advocated above parliamentary supremacy in South African democracy. The Constitution serves as the cornerstone for South Africa’s democratic system, providing a framework for safeguarding fundamental rights, maintaining the separation of powers, and furthering social justice and equality.  Despite its importance in South Africa’s political system, parliamentary democracy operates within the framework of constitutional principles and limitations. Given its emphasis on human rights, democracy, and the rule of law, South Africa’s post-apartheid history demonstrates that constitutional supremacy aligns more closely with its aims and ideals. The effectiveness of institutions such as the court, which must apply the constitution unbiased, is critical to the functioning of constitutional supremacy.

Following the elections, South Africa may choose to reaffirm its commitment to constitutional supremacy by strengthening constitutionally protected institutions such as an independent judiciary and a vigilant civil society. This will ensure that the nation’s administration remains focused on the promise of democracy and human rights, as outlined in the constitution. That is not to imply that legislative responsibilities should be ignored; rather, they should be balanced within the framework of constitutional standards.

South Africa must carefully balance these contrasting ideals as it charts its destiny. Constitutional supremacy ensures respect for fundamental rights and serves as a deterrent to tyranny, but it must be tempered with an awareness of democracy and the role of elected representatives. Similarly, parliamentary supremacy, albeit representing the popular will, must operate within the confines of constitutional norms and principles.

The establishment of a constitutionalist culture across society, from the halls of parliament to the corridors of power, will eventually overcome this dilemma. It involves a commitment to defending every person’s rights and dignity, promoting accountability and transparency, and upholding the rule of law. In South Africa, the choice between legislative and constitutional supremacy is not binary; rather, it is a dynamic interplay that must evolve to suit the changing needs and aims of the country’s population. Constitutional supremacy may be more suitable and desirable than parliamentary supremacy, particularly given South Africa’s unique circumstances and commitment to democracy and human rights. It provides a foundation for enforcing the law, protecting minorities’ rights, and promoting equality and social justice.

Dr Stanley O. Ehiane is a Senior Lecturer in the Department of Politics and Administrative Studies at the University of Botswana, Gaborone, Botswana. He writes in his capacity.