Perspectives on constitution-making: independence constitution for Namibia and South Africa

To understand the choice faced by the proponents of new constitutions in southern Africa, the author first examines the history that has shaped differing constitutional perspectives, in particular the classical perspective, according to which a constitution’s principal function is to draw lines between public power and private right, and the anticlassical perspective, which defines a constitution’s principal function as organizing government to pursue a particular socioeconomic option. The author then discusses how constitutions can operate instrumentally, and the problems arising in copying constitutional provisions from another country. Finally, he explicates each of the constitutional perspectives in terms of the institutions upon which they rely to shape behaviour in their image, and compares and contrasts their desirability for the tasks of an independent Namibia and a liberated South Africa. He concludes that for SWAPO and ANC, their choice seems plainly imposed by their position as parties expecting shortly to form de jure governments dedicated to destroying apartheid, to economic development in favour of their mass constituency, to national unity, to popular participation and legality, and to keeping the machinery of government running. This will require instrumental constitutions creating governmental institutions, powers and limitations appropriate for that six-fold task. Notes, ref.