Vol. 11 No. 1 (January 2001) pp. 35-37.

CONSTITUTING DEMOCRACY: LAW, GLOBALISM, AND SOUTH AFRICA'S POLITICIAL RECONSTRUCTION by Heinz Klug. New York: Cambridge University Press, 2000. Cloth $64.95. ISBN: 0-521-78113-2. Paper $22.95. ISBN: 0-521-78643-6.

Reviewed by Stacia L. Haynie. Department of Political Science, Louisiana State University.

Heinz Klug has a tale to tell. He grew up in the midst of the apartheid struggle in Durban, and his anti-apartheid activities as a member of the African National Congress and as a journalist earned him an 11-year hiatus from his country. Klug, now an assistant professor of law at the University of Wisconsin, Madison, returned in 1990 to a very different South Africa and to a very different role. Professor Klug was involved personally in the birth of the new Republic of South Africa. In this ambitious effort, Klug explores how the political actors involved came to embrace the idea of a constitution with a justiciable bill of rights protected through judicial review by independent judicial actors. Klug argues that the South African constitution was influenced by the global faith in entrenched rights and in courts to protect them. Concomitantly, these global forces were adapted for a specific South African framework. Ultimately, Klug would argue, I think, that post-apartheid South Africa emerges with a document that combines the principles of the global community with the unique South African context within which this new democracy persists.

Following a short introductory chapter, the second chapter of the book presents a concise constitutional history for South Africa, explaining the role of parliamentary sovereignty in establishing and maintaining the apartheid system. Although the courts in the apartheid system were maintained by impeccably trained, professional white South Africans, these courts were required to enforce the racist and oppressive laws of the National Party. Nonetheless, as Klug notes, "...the law and the judiciary were not necessarily at the whim of the executive but instead there was always the possibility, but only the possibility of justice before the courts" (p. 47). Thus, although part and parcel of the apartheid regime, the courts were nonetheless understood to be a potentially beneficial resource. Some respect for the courts emerge. This reservoir of potential lays the foundation for the architects of apartheid to embrace a justiciable bill of rights.

The core of the book's thesis is presented in the third and fourth chapters. The third chapter focuses on the pressure for South Africa to accept "globalizing constitutionalism." South Africa needed to "reintegrate itself into the international community and economy." Rejection of these expectations would have jeopardized the legitimacy of the newly democratic republic in the eyes of the global community.

Klug argues that state sovereignty was limited by increasing efforts to expand the jurisdiction of various international institutions over human rights issues. For example, the United Nations General

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Assembly's persistence in addressing apartheid abuses expanded its purview over issues previously argued to be issues of state sovereignty immune from external intervention. The United Nations actions against apartheid were paralleled by non-governmental organizations, transnational corporations and individuals, preventing apartheid from remaining a local issue. Although these pressures have often been cited among the reasons for apartheid's ultimate demise, Klug argues that these forces were also instrumental in shaping the legal framework that followed its collapse. According to Klug, ideas such popular sovereignty, participatory government, justiciable rights, self-determination, and an independent judiciary emerge as tenets of the global faith in democratic governance and the rule of law. Klug does not assert that such tenets flow entirely from the top down. He recognizes the parallel influences arguing for similar or identical tenets at the grassroots level. Chapter four then focuses on the interplay between those two forces.

The fourth chapter recounts the intersection of these global and local forces in shaping the new South African Constitution. Klug notes that South Africa claimed the transition to democracy a "local" miracle. Indeed, the Constitutional Assembly prohibited foreign advisors from directly participating. According to Klug, this directive simply forces alternative and more indirect avenues of participation by the global community. He then proceeds to document how both global pressures and apartheid's history framed the actions of the major political players in the transition. He traces the early efforts of the National Party to preserve a veto right for whites over certain types of legislation. Given both the internal and international community's rejection of this idea, its ultimate shift to the protection of property rights is not surprising. The party reluctantly accepted that participatory democracy would eliminate its capacity to maintain control in a country where it represented a minority of the population. The National Party then shifted its focus to individual rights -- particularly property rights, in an attempt to prevent the redistribution of land or wealth from whites to Africans. Fearing the inability to address the wrongs of apartheid, the African National Congress was concerned about the protection of individual rights, but ultimately global pressures essentially dictated their shifting preferences for a justiciable bill of rights.

Chapter Five explores the negotiations over the negotiations. South Africa ultimately adopted a two-stage process in which the major actors negotiated over how the ultimate negotiations over the adoption of the constitution would be conducted. The former negotiations deliberated the structure and process, which created the Constitutional Assembly. The Constitutional Assembly was required to adhere to certain principles dictated in the initial negotiations. These principles were to guide the writing of the constitution. Following its passage by the Assembly, the constitution was to be certified by the newly created Constitutional Court for adherence to the principles. Although no side was completely content with the final outcome, each side gained some measure of solace and hope from the ultimate constitutional framework that was ultimately adopted.

Klug then concludes the book by demonstrating in specific ways the manner in which the global tenets of constitutional governance were specifically adapted in unique ways to the South African context. For example, the apartheid tenet of separate development allowed the National Party to forcibly remove blacks from their properties

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that were subsequently awarded to whites. Blacks wanted their lands back while whites wanted land tenure to preserve their property. Protection of property rights became the core battle for the National Party. The recognition of individual rights by the global community provided legitimacy to the National Party's claim. Ultimately, the African National Congress was forced to compromise creating a property clause with specific land rights that nonetheless retained protection for land reform. The clause and subclause mechanics of this compromise, Klug argues, represents the intersection of the global faith with specific local denominations. Constitutional engineering today emerges in an international arena. With the notorious history of the apartheid regime, and with the international political and emotional investment in its demise, it was inevitable that South Africa would be under pressure to conform to international expectations. Nonetheless, Klug demonstrates the capacity of the constitutional framers to adapt these expectations to the conflicting local pressures.

The question of course is not simply the constitutional framework that was ultimately adopted, but whether or not that framework is a viable instrument from which the new Republic of South Africa can emerge and persist as a democratic government. Klug suggests that the new constitutional structure provides the flexibility necessary for the possibility of justice. Given the abuses, repression and oppression of apartheid's past, there is tremendous pressure on the African National Congress to succeed in its governance as the new majority party. The last chapter analyzes several recent constitutional challenges brought before the Constitutional Court, the highest court of review now for constitutional questions. In each case, Klug demonstrates how the court incorporated both local and international values in its decisions, and crafted opinions that provided the "possibility of justice" for each side. The Constitutional Court's successful balancing act, argues Klug, is essential for all parties in South Africa to embrace the constitution as a "triumph of diversity in public discourse" resulting in the "reordering [of] the relations of power between property, equality and governance" (p. 182).

Klug's book combines his knowledge as both an internal player and external scholar and the product is a nicely crafted examination that itself incorporates the global tenets of the academic community of rigorous scholarship and analysis with journalistic first hand investigation of the process. Although its theme is of the book is the melding of global and local in South Africa's constitution, the work itself is the product of both as well. Any scholar of democratization processes, constitutionalism and the rule of law broadly will find this book of interest. South African scholars will similarly be interested in its specific analysis of the process from which the constitutional framework emerged. Comparative constitutional and judicial behavior scholars will find of interest the description of the Constitutional Court's decision-making. In general, Klug presents a compelling case for his argument that states no longer exist in isolation of the broader international community, but can successfully adapt global universals into local contexts.